World War I: Veterans
	 — 
	Question

Lord Faulkner of Worcester: To ask Her Majesty's Government, following the decision by the government of France to award the Légion d'Honneur to Mr Harry Patch and Mr Henry Allingham, whether they plan to grant similar recognition to these last two surviving veterans of the Great War.

Baroness Taylor of Bolton: My Lords, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of Sergeant Ben Ross of 173 Provost Company, 3 Regiment, Royal Military Police; Corporal Kumar Pun of 1 Battalion, the Royal Gurkha Rifles; Corporal Sean Binnie of the Black Watch, 3 Battalion, the Royal Regiment of Scotland; and Rifleman Adrian Sheldon of 2 Battalion, the Rifles, who were killed on operations in Afghanistan on Thursday last week.
	The French Government's decision to award the Légion d'Honneur to Mr Harry Patch and Mr Henry Allingham was welcomed and my honourable friend the Under-Secretary of State for Defence was present on behalf of the MoD at the presentation. It is right that we should all remember and recognise the contribution of those individuals and their generation. The whole House will recall Remembrance Day last year, when the three remaining World War I veterans laid wreaths in that moving ceremony at the Cenotaph.

Lord Faulkner of Worcester: My Lords, I associate myself with the tribute paid by my noble friend to those poor servicemen, and I thank her for her reply to my Question. I agree with everything that she said about remembering the contribution of that generation. I had the honour of meeting Harry Patch on a visit to Ypres last year. Does she agree that those two survivors have played an amazing part in creating understanding about warfare and conflict, and in promoting peace and reconciliation through such things as visits to schools and numerous visits to veterans in Flanders? That being so, why cannot we also offer those gentlemen some sort of official recognition? Next month, they will celebrate their 111th and 113th birthdays, which even by the standards of your Lordships' House are great ages. Will my noble friend please use her influence to see whether something can be done fairly quickly to achieve that recognition?

Baroness Taylor of Bolton: My Lords, I, too, had the privilege of meeting all three of those veterans last year at Remembrance Day and I certainly agree with my noble friend about their contribution to an understanding of what war was like in those days and the importance of peace. My noble friend and the whole House will know that national honours and awards are in the gift of the Sovereign and are always handled discreetly. It would be wrong to set a precedent by commenting further. I am sure that the House will also recall that a Statement was made on 27 June 2006 in another place in which the Government's plans to honour the World War I generation were laid out. It is important to remember that work is in hand to take further that idea and other ideas of how we should recognise those contributions.

Lord Astor of Hever: My Lords, from these Benches we also send our condolences to the families and friends of the four soldiers mentioned by the Minister who were tragically killed in Afghanistan. I turn to the Question. Whatever the Government may be planning after the death of the last of these veterans—whether it be a state funeral or something else—will they ensure that they take close soundings with the families of the veterans?

Baroness Taylor of Bolton: My Lords, the noble Lord is right that we have made a statement saying that, because the death of the last World War 1 veteran will be such a major milestone, there will be a memorial service, which will be an opportunity for the entire nation to remember not just that individual but the whole generation whom we are talking about. Obviously, these matters have to be dealt with extremely sensitively, and the wishes of the families have to be taken into account, which is why it might be appropriate to wait a little time following the death before holding such a service.

Lord Addington: My Lords—

Lord Jones of Birmingham: My Lords—

Noble Lords: Lib Dem!

Lord Hunt of Kings Heath: My Lords, there is plenty of time. Let us hear first from the noble Lord, Lord Addington, and then from the noble Lord, Lord Jones.

Lord Addington: My Lords, while I and these Benches join in the thoughts expressed about the four soldiers who have died, would the Minister not agree that we have been very late to honour those people who have served us on active service? Will the Government undertake to look at how we honour those who survive conflict and have served the country? At the moment we are tremendously good at remembering the dead, and are starting to remember the wounded—but not those who make it through comparatively unscathed.

Baroness Taylor of Bolton: My Lords, a lot of work has been done recently, because of recent operations in Iraq and Afghanistan, to understand the needs of those who have been injured or who have served on operations. The service Command Paper that was published last year, and improvements in healthcare and the rights of former servicemen, take that situation a lot further, and there have been significant improvements. It is right to say that we should not forget those who survive conflicts, as well as to remember those who have died. As far as concerns about being late to acknowledge the contribution of those such as the veterans whom we were talking about, there have been many acknowledgements, and the 90th remembrance service last year was a very fitting occasion to recognise the contribution of those who had served in the First World War.

Lord Jones of Birmingham: My Lords, I declare an interest as a former serving officer in the Royal Navy and a passionate advocate of defence manufacturing equipment from Britain in both the CBI and UKTI. The Minister recognised the sad loss last Thursday—I notice that one of them was a Gurkha. I would love to hear from the Government that we will honour not only these two amazing veterans of a faraway conflict, but also Bomber Command, which this and former Governments have never had the courage to acknowledge formally. Will the Minister confirm now that the Typhoon programme and the aircraft carrier construction programme will carry on? Will the Government please get behind the serving officers and men of the armed services of this fabulous country?

Baroness Taylor of Bolton: My Lords, I am very proud of what we have done in our equipment programme, but I do not intend to go into that in response to a Question about some very important people who have served this country well; we should spend our time acknowledging that. On the subject of awards, it is a good thing that it is not Ministers who make those decisions: we have appropriate mechanisms in place, we have so far done very well by our veterans and we should all remember their contribution.

Energy: Wind Turbines
	 — 
	Question

Lord Willoughby de Broke: To ask Her Majesty's Government what plans they have to communicate more widely the recent statement by the Rt Hon. Ed Miliband concerning the unacceptability of objecting to wind turbines.

Lord Hunt of Kings Heath: My Lords, Her Majesty's Government regularly communicate their support for wind generation as part of their commitment to developing renewable energy. We will reaffirm this policy in the renewable energy strategy, to be published this summer.

Lord Willoughby de Broke: My Lords, I am most grateful to the Minister for that Answer. Could he confirm that, because of the intermittent nature of wind power, all wind farms need permanent back-up from conventional generating plant? Does he agree, therefore, that supporting wind farms is as socially unacceptable as sneezing in public during a flu epidemic?

Lord Hunt of Kings Heath: No, my Lords, I do not follow the logic of the noble Lord's argument at all. Of course, he is right to refer to the intermittent nature of wind energy, which means that there must be back-up capacity. However, as this House has frequently reminded me, that reinforces the need for a diversity of supply, which is why this Government have given their support to new nuclear and new coal under carbon capture and storage, as well as encouraging renewables. As for wind in general, we see onshore wind as having a critically important part to play in developing energy sources in this country.

Lord Hughes of Woodside: My Lords, does my noble friend accept that beauty is in the eye of the beholder? I, for one, think that wind turbines are not only beautiful but practical as well.

Lord Hunt of Kings Heath: My Lords, I could not agree more. On a recent visit to the Orkney Islands, I saw some beautiful wind farms, which I am sure enhance the landscape.

Lord Lawson of Blaby: My Lords, as the noble Lord, Lord Willoughby de Broke, reminded the House, the Minister's boss, the Secretary of State, declared that objecting to wind farms was socially unacceptable. Is the Minister aware that the distinguished scientist James Lovelock, in his recent book The Vanishing Face of Gaia, with a commendatory preface from the president of the Royal Society, no less—the noble Lord, Lord Rees—contains the most excoriating attack and demolition of the case for wind power that I have ever read and which every objector should use in every public inquiry? Does the Minister consider that Professor Lovelock is socially unacceptable?

Lord Hunt of Kings Heath: My Lords, we welcome all contributions to this enlivening debate about the contribution that wind energy can make to the achievement of the renewable energy targets. As I said, we believe that we need a diversity of supply in future, but, unlike the professor whom the noble Lord mentioned, we believe that wind energy has an important role to play in that diversity of supply.

Lord Teverson: My Lords, last week there were two announcements—one by Siemens, stating that it was about to open a factory in Kansas employing 400 people in producing wind turbines, and one by Vestas, stating that it was likely to close its turbine plant on the Isle of Wight. Is that not an example of the failure of British government policy on renewable energy and wind power, and is it not an indication that we are falling behind the rest of the world rather than making up the space that we have already lost?

Lord Hunt of Kings Heath: No, my Lords. Those are commercial decisions and, as I told the House last week, the factory that, regrettably, was closed made turbines for the US not the UK market. There are very positive signs about development in this country. An announcement was made today by E.ON, which said that the first phase of the London Array project will take place later this year, which could generate power in time for the 2012 Olympics. That wind farm will involve 341 turbines, so very significant progress is being made. The renewables target is very challenging and we will need a lot of onshore and offshore wind, but I am satisfied and confident that we will achieve those targets.

The Lord Bishop of Liverpool: My Lords, the Minister referred to the targets. Is he able to tell the House how many regions are on track to reach their targets on renewable energy? What sanctions are there to be applied to local authorities that fail to meet those targets?

Lord Hunt of Kings Heath: My Lords, it is not a question of regional targets. In the summer we will be publishing the renewable energy strategy, which will have scenarios that embrace the developments in different areas of renewable energy that we need to see happen. Behind the right reverend Prelate's question is the attitude of some local authorities in terms of turning down planning applications. Noble Lords will know that we have reformed planning legislation, and in the summer we will be producing a draft of the national policy statement that will relate to renewable energy. That will, I hope, have a positive impact on the role of local authorities in granting consents.

Lord Boston of Faversham: My Lords, does the Minister appreciate that the unacceptability or acceptability of these turbines depends on where they are to be sited? As one who lives in Cumbria, I have quite strong views about siting. There are places there where it would be unacceptable to site these turbines because of the great damage they would do to the environment in that county.

Lord Hunt of Kings Heath: My Lords, the noble Lord, in common with all noble Lords, appears to have strong views on wind farms. I take his point that there are areas of the country, or specific sites, where it would not be sensible to proceed with wind farm developments. Those are factors that need to be considered by planning authorities. The point that my right honourable friend was making is that it would be wrong if there was simply a blanket assumption that no wind farm development should take place.

Lord Howie of Troon: My Lords—

Lord Davies of Oldham: My Lords, we are in the 15th minute; we must move on.

Wilton Park
	 — 
	Question

Viscount Montgomery of Alamein: To ask Her Majesty's Government what plans they have for Wilton Park.

Lord Malloch-Brown: My Lords, following a review of Wilton Park in 2008, the Government have committed to ensuring the success of Wilton Park as a centre for the resolution of global challenges. We are reworking our strategy, including a new mission, new objectives, new financing mechanisms and new governance arrangements. The Government are also recruiting a new chief executive and chair to lead Wilton Park.

Viscount Montgomery of Alamein: My Lords, that is very good news indeed. However, given that Wilton Park performs a valuable function, as the noble Lord has explained, can he give greater assurance that there will be continuity of funding to ensure that this programme of reorganisation and redevelopment takes place over the period that he has envisaged? Perhaps in addition—I declare a somewhat well-known interest—could he encourage the chief executive to have more conferences on Latin America?

Lord Malloch-Brown: My Lords, we have assured core Foreign Office funding for Wilton Park over the next three years. This replaces the fact that Wilton Park was going to different parts of the Foreign Office to get funding for different conferences, which had a huge labour and transactional cost to it. We hope that the provision of this core funding will allow the leadership of Wilton Park to go out and find new clients, so that it will be able to put itself on a much more stable footing for the long-term future.

Lord Wallace of Saltaire: My Lords, I declare an interest: my wife is a former member of the Wilton Park council. This is a very good example of soft power in British diplomacy, which the Foreign Office values a great deal but which the Treasury does not seem to understand. There are similar issues over Commonwealth scholarships and a range of other things. Can the Foreign Office have a much more constructive, broad dialogue with the Treasury about these soft-power elements in British diplomacy, which have been cut back so vigorously in recent years? Wilton Park is only one of a considerable number of immensely valuable links with other countries, providing a way of influencing the debates in those countries in a way that we have found so useful.

Lord Malloch-Brown: My Lords, the conference centre, when it works well, is an extraordinary success in today's world. In the UK we have the examples of Ditchley and Chatham House here in London, which the noble Lord also knows well, and more globally we have things such as the World Economic Forum. But to succeed in this highly competitive world, even an institution such as Wilton Park needs to find the right niche with a sharpened mission and focus in terms of the kind of conferences it seeks to attract. We are betting on its success and as we secure that success we will certainly defend it against the Treasury.

Lord Corbett of Castle Vale: My Lords, as a former member of the council of Wilton Park, may I attest to the great value of that setting both to the people of this country and especially to those from developing countries? To put it crudely, there are very few places on this planet where people can safely go and think out aloud in trying to find solutions to immensely important problems.

Lord Malloch-Brown: My Lords, it is an extraordinarily important feature of Britain for all those who have been lucky enough to visit it, and even for us poor Labour Ministers. It is the closest we have been to a house with a moat around it.

Lord Howell of Guildford: My Lords, will the Minister accept that I have visited Wilton Park many times but have never noticed a moat? Will he also accept that we strongly support and welcome these moves to ensure the continuity of Wilton Park, which has been extremely well run? It is particularly valuable in bringing together representatives of some of the smaller nations of Europe and of the Commonwealth to discuss issues of common interest and to do that particularly valuable thing of not only promoting our own interests as a nation but also promoting the interlinking and global togetherness which will ensure stability and peace throughout the planet.

Lord Malloch-Brown: My Lords, I certainly agree with all that the noble Lord said. I think that it could even hold a few more conferences on the Commonwealth. On the issue of Britain as a nation that networks effectively between small and big nations, between NGOs and Governments, between think tanks, and in the general debate on ideas in international affairs, Wilton Park is a critical part of the soft-power architecture of what makes Britain effective in the world.

Railways: East Coast Main Line
	 — 
	Question

Lord Berkeley: To ask Her Majesty's Government what is their response to reports that National Express is in discussions about the future of the franchise for the East Coast main line.

Lord Adonis: My Lords, the Department for Transport meets all train operating companies on a regular basis and these meetings include discussion on the impact of the current economic climate.

Lord Berkeley: My Lords, I am grateful to my noble friend and I am glad to hear that he often meets the train operators, but will he clarify whether there will be any circumstances in which a franchisee who fails would be allowed to renegotiate his contract into a management contract to reduce the risk? Does my noble friend not agree that, unless franchisees are excluded from renegotiating their own contracts, after the first one is done, all the other franchisees in difficulties will wish to follow the lead of the first one?

Lord Adonis: My Lords, Section 30 of the Railways Act 1993 gives the Secretary of State the duty to provide or secure rail services where,
	"a franchise agreement is terminated or otherwise comes to an end".
	Management contracts are one of a number of ways that the Secretary of State can meet that obligation.

Lord Bradshaw: My Lords, in view of the collapse of Railtrack, the bankruptcy of Metronet and now, we are told, the imminent collapse of some railway franchises, will the Minister explain to the House the benefits of involving the private sector in the provision of railway services?

Lord Adonis: My Lords, we inherited the current arrangements in terms of the privatisation of the railways, but we do not believe that it would be in the public interest to have another period of institutional turmoil in an industry whose quality of service is systematically improving, although there is still a good way to go to improve further.

Lord Mawhinney: My Lords, as a former Transport Secretary, and in light of the previous question, I declare an interest and a disappointment that the Minister did not point out the enormous increase both in the number of people using the railways and in investment in the railways since they went into the private sector. Would the Minister be willing to place in the Library of the House those clauses in the National Express contract that indicate how the payment made by the operator relates to the general state of the economy and how it may rise or fall depending on the state of the economy?

Lord Adonis: Yes, my Lords.

Lord Palmer: My Lords, when this was debated under the previous Administration, I, along with the late Lord Peyton, felt very strongly that railways should not be privatised. In view of the current economic crisis, it is worth the Government at least looking at taking the entire rail network back under their control. Does the Minister not agree that this has merit?

Lord Adonis: No, my Lords, I will not accept that invitation, if the noble Lord will forgive me. As I said in reply to an earlier question, we see no benefit to the public in further institutional turmoil in the industry. Quality of service is improving, rates of investment are also improving and we want to see those responsible for the management of the industry in its current state get on with the job and continue to improve the service. We do not believe that hanging a sword of Damocles above their heads would serve any public good whatever.

Lord Faulkner of Worcester: My Lords, following on from the reference by the noble Lord, Lord Palmer, to the late Lord Peyton, can my noble friend confirm that he succeeded in moving an amendment in your Lordships' House which gave the then British Railways Board the opportunity to run franchises in competition with the train operating companies which were bidding for them? Can he confirm also that, if franchises fail, he and the Department for Transport have an emergency plan for other operators to step in and take over?

Lord Adonis: My Lords, I can certainly confirm what my noble friend has said.

Earl Ferrers: My Lords, I wonder whether the noble Lord would be good enough to rethink his original Answer and to answer the Question on the Order Paper, which asks the Government,
	"what is their response to reports that National Express is in discussions about the future of the franchise".
	As I understood, it, the noble Lord said, "We are often in a lot of discussions with rail companies", but I did not hear him say what the conclusion was.

Lord Adonis: My Lords, these discussions are commercially sensitive and it would not be appropriate for me to give a running commentary on them. The noble Earl can be reassured, however, that we meet the railway companies frequently to discuss all matters of concern to them and to the Government.

Lord Brooke of Sutton Mandeville: My Lords, given the present tourist boom and the Minister's own admirably extensive travels, can he say how many cathedrals in the United Kingdom cannot be seen from a train?

Lord Adonis: My Lords, I am trying to think of my passage around the country and how many I saw, which was quite a large number. I will undertake to write to the noble Lord with that information—unlike the earlier information requested, I do not believe that it is commercially sensitive.

Earl Attlee: My Lords, if a franchisee—a TOC—has to hand in the keys to a non-profitable franchise, is he able to retain the profitable ones?

Lord Adonis: My Lords, the department has the power to cross-default franchise operators, but we would take a decision on that in each individual case.

Lord Stoddart of Swindon: My Lords, is the noble Lord aware that some people will be disappointed with the dusty answers he gave the noble Lords, Lord Bradshaw and Lord Palmer, about taking the railways back into public ownership? Is this not an opportunity for the Government to honour the promise made by John Prescott before the 1997 election that he would renationalise the railways?

Lord Adonis: My Lords, as I have said repeatedly this afternoon, we see no public interest being served at all in creating further institutional turmoil in the railway industry.

Lord Roberts of Conwy: My Lords, during the noble Lord's recent travels, it was noted in Wales that he did not visit Wales. Will he include Wales in his next itinerary?

Lord Adonis: My Lords, that is a vile falsehood. As the noble Lord will know better than anyone, the train from Shrewsbury to Chester passes through Wrexham.

Access to Parliament
	 — 
	Private Notice Question

Lord Naseby: To ask Her Majesty's Government why the police did not ensure free passage for peers and MPs to Parliament on Monday 11 May 2009.

Lord West of Spithead: My Lords, the Metropolitan Police have a duty to secure access to Parliament. Police tactics and decisions on managing demonstrations are an operational matter for the independent judgment of chief officers of police. On some occasions, entry to Parliament has been limited to one of several access points. This may have led to some inconvenience. However, the police have kept the House authorities closely informed when access points have been restricted and when advance warning has been possible.

Lord Naseby: My Lords, I am grateful to the Minister for that Answer, so far as it goes. This is the second time—the previous time being 20 April—that the police have been totally hoodwinked and outwitted by the demonstrators and freedom of access through the front door has therefore been denied to both Peers and Members of Parliament. This is not only a total denial of freedom of access, but a major security risk, with people sitting in front of Carriage Gates. What action will be taken to ensure that this never happens again?

Lord West of Spithead: My Lords, I am sure that we have all witnessed the ebb and flow of smaller and very large numbers over the past few days. On some days the numbers have been very few; on some days they have been very large indeed. On the whole, however, these protests have been peaceful and well managed by police and the organisers.
	There is an important point of principle here. As the Joint Committee on Human Rights says, while protests may be disruptive or inconvenient, the presumption should be in favour of protests taking place without state interference. These are very difficult things to handle. In controlling demonstrations, the police have to facilitate that lawful process, preserve the peace, uphold the law and prevent the commission of offences.
	Clearly, it is not right that access here should be limited—it is absolutely wrong. However, the police have a difficult balancing act to perform and, so far, they have been doing that well. As I have said, it is a matter for the chief officers of police.

Baroness Boothroyd: My Lords, am I not right in thinking that sessional orders are in operation when Parliament is sitting? If that is the case, why are they being flouted in this way?

Lord West of Spithead: My Lords, the noble Baroness is absolutely right that sessional orders are in operation, but they are not being flouted. The police are handling this as well as they are able. There has always been at least one access point available, if not more. I agree that it is difficult and unfortunate, but the police are handling a sensitive and difficult situation. There are 250,000 in the Tamil community, most of whom are in London. At least 30,000 could be available for a demonstration at very short notice.
	We have actually had a fairly well natured demonstration. They have made their point and been able to demonstrate. When they have broken the law, the police have acted; something like 45 or 46 were arrested yesterday when they blocked the roadway and some other accesses, and some went on to Westminster Abbey. The police are handling it well. It is a matter for the Metropolitan Police Service and the chief police officers.

Lord Berkeley: My Lords, I congratulate my noble friend. Will he pass on my congratulations to the police for the way in which they controlled this demonstration without using masks and batons, or covering up their numbers and other things which they did at the G20 protests?
	I certainly got here without any problem at all, by cycling down the road, walking along the pavement and showing my pass. Maybe other noble Lords would like to try the bicycle.

Lord West of Spithead: My Lords, my noble friend highlights some of the problems that our police force has. A number of things are being investigated as a result of the G20 demonstrations. The police always have this difficult balance. As I say, at the moment they have been handling this well. It is extremely unfortunate and wrong that access to this place should have been blocked, but the police are dealing with it as best they can under the circumstances. I am sure that there may well be other arrests, but that is an issue for the chief police officers involved within the Metropolitan Police Service.

Lord Hylton: My Lords—

Baroness Harris of Richmond: My Lords—

Earl Ferrers: My Lords—

Lord Hunt of Kings Heath: My Lords, why do we not hear from the noble Earl, Lord Ferrers, and then from the noble Baroness? There is still five minutes.

Earl Ferrers: My Lords, we all know the difficult time that the police have, and I admire what they have done, but how long do we have to have Parliament Square blocked by people who are of a foreign nationality and who are complaining about problems in their country? They go on and on, and in so doing disrupt the democratic effects of our country.

Lord West of Spithead: My Lords, as I said, it is important that we facilitate lawful process—and this is a lawful process—and I have no doubt that we all need to work to bring the conflict in Sri Lanka to an end in a way that minimises further civilian casualties there. The quicker it is finished, the better it will be for everyone.

Baroness Harris of Richmond: My Lords, while not allowing the protesters to take over to the extent that they did yesterday, will the Minister make clear that this particular failure by the police will not be used to renege on the promise to repeal unreasonable restrictions on Parliament Square protesters?

Lord West of Spithead: My Lords, I do not accept that there has been a failure by the police at all. It was wrong and inappropriate that we did not have access to the Palace of Westminster but, bearing in mind the circumstances, I think that they have handled that particular demonstration extremely well.
	In answer to the question about SOCPA, it makes no change whatever, and the intended changes will probably happen within a matter of weeks. As a matter of interest, a group of Tamils did ask permission for a demonstration of about 50 people within the area. Clearly, those numbers and everything else have been rather overtaken by events, and that shows that SOCPA did not achieve its aim anyway.

Lord Boston of Faversham: My Lords, while acknowledging the very proper concern about access to this place made by the noble Lord, Lord Naseby, and the point made by the noble Earl, Lord Ferrers, with which I wholly agree, my experience yesterday was different.
	I proceeded from Westminster Tube station along my usual route towards the Peers' Entrance. Across the pavement there were a number of tapes or ribbons. Most of them were raised for me by very helpful police officers so that I could duck underneath them. Far from my access being impeded, it was actually easier than usual because there were fewer people on the pavement.

Lord West of Spithead: My Lords, I thank the noble Lord for that comment. What it shows is that the incident had a different impact on many of us. However, I am sure all of us would agree that we should have free and unimpeded access to the House but, under very difficult circumstances, the Metropolitan Police Service has been handling the demonstration extremely well.

Lord Lea of Crondall: My Lords, is my noble friend aware that, in terms of world standards of dealing with demonstrations, on this occasion the police have shown great tact?
	There has been a traumatic period during which the Ceylon Tamils have seen their families back home in great difficulty. I think that the goodwill in the Tamil community has been increased by the way the situation has been dealt with—and that in no way removes the validity of the Question of the noble Lord, Lord Naseby.

Lord West of Spithead: My Lords, my noble friend has gone into a little more of what is causing the demonstration. It seems to me that, while they have a lawful right to demonstrate, we have made huge efforts in this country to try to bring an end to fighting in Sri Lanka. I think we should be proud of that and I hope that the Tamils can see and understand that as well, because we have bent over backwards and done very well in trying to end the fighting there. However, they have a right to demonstrate and it is being handled well.

Baroness Oppenheim-Barnes: My Lords, is the Minister aware that it is not just access to Westminster itself but to Parliament Square that is one of the main problems? It is not caused by the police but by the ridiculous roadworks at the end of Victoria Street and into Parliament Square. That, together with the Tamils, has made the problem a million times worse than it would otherwise have been.

Lord West of Spithead: My Lords, if I got into the problems of roadworks and moving around London, the debate could go on for another 10 minutes, so I do not think I will open that one up.

Baroness Symons of Vernham Dean: My Lords, is not the real problem that Parliament is the embodiment of freedom of speech in this country and that if access to Parliament is limited, however worthy the demonstrators' cause, that undermines the fact that they, too, have freedom of speech? The fact is that, if we cannot get to Parliament, freedom of speech is fundamentally undermined.

Lord West of Spithead: My Lords, as I said earlier, we have always had access to, and been able to get into, Parliament. I accept that that access has not been untrammelled and that that is not good enough, but we have been able to get in. I go back to what I said: this is a very sensitive and difficult situation, and pragmatically I think that it has been handled extremely well. No doubt people who have broken the law will be charged and so on because, as I said, that is part of the police's job. They have to control demonstrations, facilitate lawful process, preserve the peace, uphold the law and prevent the commission of offences. If people do commit offences, the police take them to court.

Perpetuities and Accumulations Bill [HL]
	 — 
	Committed to a Special Public Bill Committee

Moved By Lord Patel of Bradford
	That the Bill be committed to a Special Public Bill Committee.
	Motion agreed.

Disabled Persons (Independent Living) Bill [HL]

Bill Main Page
	Copy of the Bill
	Amendments

Third Reading

A privilege amendment was made.
	Bill passed and sent to the Commons.

Health Bill [HL]

Bill Main page
	Copy of the Bill
	Amendments

Third Reading

Clause 1 : NHS Constitution
	Amendment 1
	 Moved by Lord Darzi of Denham
	1: Clause 1, page 1, line 9, at end insert "or (Other revisions of NHS Constitution)"

Lord Darzi of Denham: My Lords, I shall speak also to Amendments 2 to 10. On Report, the noble Earl, Lord Howe, tabled an amendment to ensure that Parliament is given an opportunity to scrutinise any changes to the guiding principles set out in the NHS Constitution. In the government amendments that I bring forward now, we have accepted the principle of the amendment but suggest an alternative form of wording to ensure that it fits with the existing clauses. These amendments require the Secretary of State to make regulations, under the negative resolution procedure, to address any changes to the guiding principles set out in the NHS Constitution.
	Although they may look extensive, the amendments are minor and technical. They make it clear that regulations must be laid whether principles are changed as a result of the 10-yearly review of the constitution or as a result of more periodic revisions. To achieve that, they make clearer the distinction between a review and a revision, and correct cross-references.
	Any changes to the guiding principles in the future would already require consultation, as we set out in the Bill from the start. However, I have listened to the concerns of the House about the role of Parliament in determining the guiding principles, and the amendments address those concerns. I hope that noble Lords are content with these amendments and I beg to move.

Earl Howe: My Lords, I very much appreciate the Government's acceptance of the underlying principle of the amendment carried by your Lordships on Report, and of course I accept the reformulation proposed by the Minister.
	The fear that some people had that an amendment of this kind might open the floodgates to litigation against the NHS was never one that I considered to be well founded. I still do not believe that. It would have validity if the scope of these amendments were to extend more widely than they do—if, for example, they were to embrace specific rights. However, in so far as the guiding principles are already underpinned by existing primary legislation, there cannot reasonably be a fear that, by linking the constitution directly to the parliamentary process, we will be creating the potential for a lawyers' charter.
	As I said, I am most grateful to the Minister for having given this matter his close consideration and for having brought forward these amendments. I hope that they will be accepted.

Lord Mackay of Clashfern: My Lords, I strongly support what has been said. It is extremely good that the Minister has felt able to modify the Bill in this way. A lawyers' charter is not a particularly fearsome prospect for me. However, the best protection against lawyers' charters is clear drafting, and these amendments are clearly drafted.
	Amendment 1 agreed.
	Clause 2: Core principles
	Amendment 2
	 Moved by Lord Darzi of Denham
	2: Clause 2, leave out Clause 2
	Amendment 2 agreed.
	Clause 4: Availability, review and revision of NHS Constitution
	Amendments 3 to 7
	 Moved by Lord Darzi of Denham
	3: Clause 4, page 3, line 9, leave out subsections (2) and (3)
	4: Clause 4, page 3, line 15, after "Constitution (" insert "referred to in this Chapter as"
	5: Clause 4, page 3, line 25, at end insert—
	"( ) The guiding principles may not be revised as a result of a 10 year review, except in accordance with regulations made by the Secretary of State setting out the revision to be made."
	6: Clause 4, page 3, line 26, at end insert "made as a result of a 10 year review"
	7: Clause 4, page 3, line 29, at end insert—
	""the guiding principles" means—
	(a) the 7 principles described in the NHS Constitution published on 21 January 2009 as "the principles that guide the NHS", or
	(b) any revised version of those principles set out in the NHS Constitution published under this section or section (Other revisions of NHS Constitution);"
	Amendments 3 to 7 agreed.
	Amendment 8
	 Moved by Lord Darzi of Denham
	8: After Clause 4, insert the following new Clause—
	"Other revisions of NHS Constitution
	(1) This section applies to any revision of the NHS Constitution made other than as a result of a 10 year review (including any such revision which revises the guiding principles).
	(2) Before any revision the Secretary of State must undertake appropriate consultation about the proposed revision.
	(3) The persons consulted must include such patients, staff, members of the public and other persons as appear to the Secretary of State to be affected by the proposed revision.
	(4) The guiding principles may not be revised, except in accordance with regulations made by the Secretary of State setting out the revision to be made.
	(5) The Secretary of State must publish the NHS Constitution after any revision."
	Amendment 8 agreed.
	Clause 5: Availability, review and revision of Handbook
	Amendment 9
	 Moved by Lord Darzi of Denham
	9: Clause 5, page 4, line 12, at end insert "(whether made as a result of a review under this section or otherwise)"
	Amendment 9 agreed.
	Amendment 10
	 Moved by Lord Darzi of Denham
	10: After Clause 6, insert the following new Clause—
	"Regulations under section 4 or (Other revisions of NHS Constitution)
	(1) The power to make regulations under section 4 or (Other revisions of NHS Constitution) is exercisable by statutory instrument.
	(2) A statutory instrument containing regulations under either of those sections is subject to annulment in pursuance of a resolution of either House of Parliament."
	Amendment 10 agreed.
	Clause 10: Direct payments for health care
	Amendment 11
	 Moved by Lord Darzi of Denham
	11: Clause 10, page 7, line 33, at end insert—
	"( ) as to arrangements to be made by the Secretary of State or the Primary Care Trust for providing patients, payees or their representatives with information, advice or other support in connection with direct payments;
	( ) for such support to be treated to any prescribed extent as a service in respect of which direct payments may be made."

Lord Darzi of Denham: My Lords, these amendments clarify our intentions around supporting patients and reviewing the pilot schemes. Having listened to the excellent debates on Report and in Grand Committee, I promised to consider these issues further, and I have consulted the noble Baroness, Lady Barker. I hope these amendments address noble Lords' concerns.
	Amendment 11 would make it more explicit on the face of the Bill that the NHS should make arrangements to ensure that patients, or people receiving direct payments on someone else's behalf, are able to access advice, information, and other support. As I have said in earlier debates, having proper support in place is vital for the success of this policy, and support could be delivered in many ways. The pilot proposals we have received contain a range of innovative ideas. We want to allow for flexibility rather than prescribe a particular approach.
	The amendment will allow our regulations to be broad enough to allow innovation to flourish, while ensuring that people are well supported. It will also allow patients to buy support services using their direct payments. Some people have suggested that PCTs should commission and pay for support services centrally. Others have proposed including an element within the personal health budget to allow patients to choose the support that is right for them. It is likely that different approaches will work in different circumstances, and this amendment gives us the flexibility to test both.
	Amendment 12 clarifies how we intend to evaluate direct payments. The first part highlights our objective to commission and publish an independent evaluation. Noble Lords may know that the department recently published a detailed invitation to tender for the evaluation of the personal health budgets pilot programme. We hope to have a team of independent researchers in place by the summer.
	I emphasise that every pilot site will be involved in the evaluation. In practice, it is likely that a representative subset of the pilots, chosen by the evaluation team, will be examined in great detail, while the other sites contribute information. This will give both breadth and depth to the analysis.
	The evaluation will, of course, specifically consider the effect of direct payments as a mechanism for delivering personal health budgets. The findings of the evaluation will be published. Moreover, before the Government can extend direct payments more widely, each House of Parliament must give its express approval, through the affirmative resolution procedure.
	The second proposed new subsection in the amendment allows the Government to specify in regulations some of the issues the review should address. These include reviewing the administration of the schemes, the effect of direct payments on the cost or quality of care, and the impact on the behaviour of patients, carers and providers.
	I know that the noble Baroness, Lady Barker, is particularly concerned about the potential effect of personal budgets on other services, particularly the effect on smaller specialised service providers. The amendment is deliberately worded in a general way to emphasise that we intend to examine the effect of direct payments both on the people who receive them and on those who do not. Our invitation to tender makes that clear.
	Amendment 13 is a technical amendment, reflecting the addition of these paragraphs in new Section 12C. We have listened to the points raised in the debate and I believe that these government amendments respond to them. They provide explicit reassurance that we intend there to be a proper support in place for people receiving direct payments, and that the evaluation should be rigorous and independent. I commend these amendments to the House. I beg to move.

Baroness Barker: My Lords, I thank the noble Lord, Lord Darzi, for tabling these amendments. They are the product of intense discussions between the department and myself. I am most grateful that we have achieved a resolution of matters which although technical and boring are of great importance to the working of this policy. I am delighted to be able to do so in the presence of the noble Baroness, Lady Campbell, because those who sat through our discussions will see her hand in this amendment in the inclusion of the word "support". She took me to task on my original proposals and she made them better. I am therefore pleased that this represents a victory for her, too.
	I do not want to restate the arguments we had during previous stages. I am pleased that the noble Lord has seen the importance of requiring primary care trusts to pay attention to the provision of these services, not least because in the department's own advice and guidance to commissioners, it talks about reliance on existing services such as the CAB. When these pilots take place, those services will be going through a great deal of upheaval and may not be readily accessible to people.
	As regards the review, I thank the Minister for his explanation and for sharing with me the detailed spec for the review process. However, I seek clarification from him on one point. He talked about the wording of the amendment, enabling the research to focus not only on those patients who receive direct payments, but also on those who do not. I would welcome his confirmation that the wording of the amendment is such that it would not be a matter of looking only at those patients who do or do not receive direct payments for the same service, but looking at the impact of a service which is funded by direct payment on other parts of the health service. That is the point that I have been trying to make for the past week.
	I am under no illusion that it will be an extremely complex piece of research. The noble Lord, Lord Darzi, talked about the need to research the cost of direct payments, but to research the cost-effectiveness of direct payments will require a level of monitoring and accountancy, and sophistication in those, which is as yet unseen. We need properly to be able to answer the question, "Does the move towards direct payments and individual budgets not only benefit patients in terms of the outcomes of those services, but decrease reliance on other services in the NHS?". That is a critical part of the issue. From what the Minister has said, I believe that he will be able to give me a satisfactory answer. With that in mind, I thank him very much for the work that he has done to get us to this point.

Earl Howe: My Lords, these amendments immensely strengthen this part of the Bill, and reflect a key part of the concerns raised at earlier stages from all parts of the House, including mine. Like the noble Baroness, I very much welcome all these amendments, especially Amendment 11, which seems to address an aspect of the direct payment scheme that is likely to prove central to its uptake and success, namely the provision of,
	"information, advice or other support",
	for those who decide to try that scheme. I hope that these amendments will be accepted.

Lord Darzi of Denham: My Lords, I am grateful for the support that these amendments have received. To clarify the issue raised by the noble Baroness, Lady Barker, the tender for the evaluation is based on five broad areas: the effects on individual outcomes, including carers and informal carers; the behavioural change on both individuals and NHS staff; finances and cost-effectiveness; system effects, including impact on staff and other existing services, and how personal budgets have been implemented. It covers a wide range of services, so I very much hope to have reassured the noble Baroness.
	Amendment 11 agreed.
	Amendments 12 and 13
	 Moved by Lord Darzi of Denham
	12: Clause 10, page 8, line 29, at end insert—
	"( ) Provision as to the review of a pilot scheme may in particular include provision—
	(a) for a review to be carried out by an independent person;
	(b) for publication of the findings of a review;
	(c) as to matters to be considered on a review.
	( ) Those matters may in particular include any of the following—
	(a) the administration of the scheme;
	(b) the effect of direct payments on the cost or quality of care received by patients;
	(c) the effect of direct payments on the behaviour of patients, carers or persons providing services in respect of which direct payments are made."
	13: Clause 10, page 8, line 30, leave out "carrying out"
	Amendments 12 and 13 agreed.
	Clause 13 : Innovation prizes
	Amendment 14
	 Moved by Lord Darzi of Denham
	14: Clause 13, page 10, line 1, after "to" insert "—
	(a) work at any stage of innovation (including research);
	(b) "

Lord Darzi of Denham: My Lords, on Report, the noble Lords, Lord Walton and Lord Patel, and the noble Baroness, Lady Finlay, tabled an important amendment that sought to make it clear that innovation prizes would encompass research. It has always been our intention that prizes would include research; innovation is a broad concept, of which research is a vital part. The purpose of the innovation challenge prizes is to recognise and promote excellence in innovation, including research. I am grateful to the noble Lords for our useful discussions on the matter and hope that this amendment puts that important point beyond doubt. I beg to move.

Lord Walton of Detchant: My Lords, I am very grateful to the Minister for that, and for the opportunity that he gave us to meet him and members of the Bill team last Thursday. I was concerned to express the fact at Second Reading—and again in Committee and on Report—that the responsibility of the National Health Service for the education and training of healthcare professionals was not formally acknowledged in the Bill. However, after our discussions I am sufficiently reassured that any revision of the NHS Constitution and other issues would take full account of the needs and concerns of those involved in such education and training. In the light of those assurances, then, the amendment that we had considered tabling for Third Reading has proved unnecessary.
	At the same time, I expressed the concern that had been conveyed to me—not least, by the Medical Research Council, the Wellcome Trust and the Association of Medical Research Charities—that the word "research" did not formally appear in the Bill. All innovation is, in many respects, dependent on research. Whether the innovation is physical, social, behavioural, scientific, or whatever its nature, achieving it depends on a background of inquiry and research. For that reason, I believe that the amendment meets our concerns precisely, and I am delighted to see it now come into the Bill.

Baroness Finlay of Llandaff: My Lords, I do not wish to reiterate the words of my noble friend Lord Walton, except to add my thanks to the Minister for having listened so attentively and worked with us to make sure that "research" appears in the Bill. For the record, I also thank him for his recognition that research might originate outside England—for example, in Wales—but result in excellent innovation in England, and that Welsh researchers would not be denied credit simply because their research was done on the other side of Offa's Dyke.
	As we have come to the end of the government amendments to the Bill, I take this opportunity, on behalf of all patients waiting for transplants and on behalf of their families who struggle with the difficulties of transplants, to thank the Minister and the Bill team most sincerely. Although not directly relevant to the amendment, the guidance on the preferential donation principle, which I introduced earlier, is now being taken forward. I have had the privilege of being able to comment on the confidential draft guidance and it looks satisfactory. When linked to the training of transplant co-ordinators, I think it will greatly improve donation rates. I hope that those families with the rare situation which I outlined will ensure that the wishes of the person who died are respected. I am most grateful to the Minister and his team.
	Amendment 14 agreed.
	Amendment 15
	 Moved by Baroness Meacher
	15: After Clause 32, insert the following new Clause—
	"Private health care
	(1) The National Health Service Act 2006 (c. 41) is amended as follows.
	(2) In section 44 (private health care), after subsection (4) insert—
	"(4A) The Secretary of State may by regulations make provision for exceptions to be permitted to the restriction mentioned in subsection (2) subject to the principle that any such exception must in all the circumstances be in the interests of the National Health Service.
	(4B) The regulations may specify such other principles and conditions as the Secretary of State may consider appropriate.""

Baroness Meacher: My Lords, Amendment 15 seeks to enable health trusts to develop private health services outside the private patient cap on condition that they are, in all the circumstances, in the interests of the National Health Service. I must declare an interest as the chair of a mental health foundation trust in east London and I make it clear that my own trust will not plan any changes in its own practice whether or not this amendment becomes law.
	The new clause leaves the private patient cap in place, although I believe that as soon as possible it needs to be replaced by a new framework. As we debated in Committee and on Report, the cap varies from one trust to another. I shall not repeat our earlier debates; suffice it to say that the cap is well recognised to be illogical and unhelpful. By providing for exceptions, the amendment opens up an opportunity for rational decision-making as long as the interests of the NHS are served. Introducing that one principle into the Bill is something to which all sides of the House would subscribe.
	I hope that proposed new subsection (4B) in the amendment will enable Ministers to introduce regulations which will extend important principles to all private patient service developments, and not only to services developed over and above the level allowed by the cap. Examples would include the principle that private patient services will not be subsidised by the NHS and the principle that those services will not dilute or adversely affect the core values of the NHS. In my view, both are crucial principles but they are absent from the 2006 Act.
	A further powerful argument in favour of the amendment is that it will enable the NHS to benefit from the considerable export opportunities provided by our highly respected NHS clinicians. We can ill afford to squander that opportunity. The amendment would protect the NHS, while increasing flexibility. I beg to move.

Earl Howe: My Lords, I cannot add very much to what the noble Baroness has said. The virtue of this amendment, as drafted, is that it would allow the Government to make changes to the rules governing the private patient income cap at a time entirely of their choosing. It would not tie the Government down and it would allow Ministers to reformulate these rules in whatever way they decide, as long as any changes conform to the key principle spelt out in the amendment. In the absence of any likely legislative vehicle for making a change of this kind, at least in the near future, I hope that the amendment will be considered seriously by the Government.

Lord Campbell-Savours: My Lords, I very much hope that my noble friend will reject this amendment for the reasons which were very carefully put by a number of us in Committee. These are incredibly sensitive matters for the House of Commons. When the original legislation went through, undertakings were clearly given by Ministers in the Commons to our Back-Benchers which enabled them to vote for the whole principle enshrined in foundation trust status. I hope that my noble friend is not tempted in any way to re-enter that discussion. If these matters are to be considered, it should be on the back of primary legislation which starts in the House of Commons, where Members can then consider them in Committee and they can be dealt with comprehensively before they enter this place. I hope that my noble friend will not take this opportunity to amend the law in any way in this area.

Lord Warner: My Lords, I support the amendment, to which I have put my name. I declare two interests. I was the Minister who moved the offending clause in the 2003 Act in this House. As I said on Report, I repent my sins. I do so again. I will explain why I differ from my noble friend Lord Campbell-Savours. First, I must declare an interest as an adviser to the General Healthcare Group, which is a private hospital. It is in no way asking me to support this amendment; I have had no conversations with the General Healthcare Group about it. I am doing this because I think that the legislation, as framed, is wrong and detrimental to the NHS.
	Why do I think that? First, the world has moved on since we passed the legislation in 2003. There was a different set of circumstances then. We now know that foundation trusts are an important part of the NHS landscape. They have proved very successful. If you look at the Healthcare Commission's ratings, foundation trusts are in many ways extremely successful because of the excellence of their services and their management of financial resources. There were, if we are honest, doubts about foundation trusts at the time that this legislation was passed. Some of those doubts were expressed in the issue of a private patient cap. That is no longer the context in which we are dealing with this.
	The cap itself has been arbitrary. It chooses a base year when people were in different positions in terms of their private incomes. The consequence of that definition has been that whether particular trusts are caught by the cap is almost random. I do not make a major claim about this, but it has in a few cases prevented an NHS trust getting foundation trust status because its business case depended—partly because of its international reputation—on growing private practice, usually from overseas earnings that would benefit the NHS. Legislation that is supposed to protect the NHS is, in my view, damaging it. We are moving into a financial climate where the NHS—if I may put it as gently as this—will need every penny that it can get to meet public expectations, which always continue to rise in our modern world, and some of the demographic challenges that it will face. It seems a bit of an own goal to restrict the ability of NHS trusts to marshal their activities, without detriment to NHS patients, so that they can generate some income from this.
	My noble friends have said that the case is now under judicial review at the High Court, so it is difficult to deal with this; we should wait for the judgments and then move the legislation that may need to be put in place. I have always found that the courts welcome clarity from the Executive about what their policy intents are. This is not to prejudge the case that is before the High Court, and which was, as I recall, taken apart by UNISON. However, it would be helpful for the Government to be absolutely clear about where they stand on this issue. The issue seems to be one of making it very clear that there is a public acceptance that the present cap is arbitrary and unfair; and that there is a willingness on the part of the Government, at an appropriate time, to make changes that will make it fairer and will not stop the NHS benefiting from raising income from private patients—without detriment to NHS patients—which could provide extra income to develop NHS services. I would like much more clarity on this issue because the worst of all worlds would be a judicial judgment which is more restrictive than what we have at the moment, and that cannot be beyond peradventure. We need to be clear about the Government's position so that we do not end up with an even more restrictive cap and no legislative opportunity to change things back, even to where we thought they were in 2003.
	That is why I support the amendment. I hope that we will have some reassurance from the Government on this issue.

Baroness Barker: My Lords, during our earlier deliberations I had a great deal of sympathy with the position put forward by the noble Lord, Lord Campbell-Savours. My name is on the amendment and the reason for that is very simple. We could debate how foundation trusts operate in great detail and at considerable length—as we did during the passage of the legislation to which the noble Lord, Lord Warner, has just referred—but, ultimately, proposed new subsection (4A) contains the key point, that any private-patient work must be in the interests of the NHS. However long we continue to debate this issue in great detail, I am persuaded that that is the critical point, and the fact that we have agreement across the House on it is important. Another important point is the arbitrary nature of the way in which the cap is working and the problems that it creates for mental health trusts in particular. Those two factors alone were sufficient to convince me that this is a move forward in the right direction.

Lord Campbell-Savours: My Lords, does the noble Baroness accept that this relates not only to mental health trusts? This is a Trojan horse that could be used by a future Government to completely undermine whole areas of the National Health Service. I am astonished to find her name on this amendment.

Baroness Howarth of Breckland: My Lords, I support the amendment because, as the noble Lord, Lord Warner, said, we are in a very changing world. I shall refer only to the area of cross-border healthcare. The present amendments are opening up our thinking to the changes happening in health services. At the moment we have a minimal cross-border healthcare system but the European Union and the Commission are looking at developing it and that will be an added complication. Anything that frees up health trusts' ability to think through the provision of alternative ways of developing their services would be helpful. I therefore support the amendment.

Lord Walton of Detchant: My Lords, I, too, strongly support the amendment. My attitude may be coloured by my personal experience, but I look back to the time when Mrs Castle, later Baroness Castle, attempted to remove all private beds from all National Health Service hospitals. I was a whole-time NHS consultant with a personal chair and I had a major research unit studying neuromuscular diseases in Newcastle-upon-Tyne. In that city there were three major hospitals, each of which had one private bed. The result, to my great regret, was that I could not admit to hospital patients who were referred to me from other countries—patients from Australia, and even two from the United States—to take advantage of my unit's facilities for research and investigation. There were no private beds to which I could admit them and no private hospital in that city had anything like the facilities necessary for that particular purpose.
	This cap was based on private income in hospitals in 2003, but the world has moved on since then. Particularly within our foundation hospitals, but also within our university departments, there are professorial units with innovative procedures and treatments that are being rapidly developed and could prove to be not only extremely important for patients—after all, let us not forget the large number of patients in the UK who are insured for private medical care—but also a very attractive possibility for patients coming to this country from overseas who must by law be private patients if they are admitted to hospitals in the National Health Service.
	The present cap is proving to be outdated, illogical and detrimental to processes which could benefit the NHS by bringing in substantial additional finance to support its work. The amendment is cleverly phrased to indicate that:
	"The Secretary of State may by regulations make provision for exceptions".
	It rests with the Secretary of State,
	"subject to the principle that any such exception must in all the circumstances be in the interests of the National Health Service".
	That is a very satisfactory way to frame the amendment and I support it strongly.

Baroness Masham of Ilton: My Lords, I would like to ask a question because of what the noble Lord, Lord Campbell-Savours, said. Are there not very strong safeguards in this amendment to protect the National Health Service? I travelled back from Mauritius once with a young child whose face was covered with a terrible cancer. Would it not benefit that sort of patient to be given treatment in our hospitals, because their countries do not have the facilities? We must be a humane country.

Baroness Thornton: My Lords, Amendment 15, tabled by the noble Baroness, Lady Meacher, and supported by the noble Baroness, Lady Barker, the noble Lord, Lord Warner, and the noble Earl, Lord Howe, seeks to maintain the existing rules governing the private patient income cap for NHS foundation trusts. The amendment would allow the Secretary of State to make regulations to permit exceptions to the general rule. An exception could be permitted only if it was in the interests of the NHS to do so. The regulations can specify other conditions and principles on which such exemptions may be permitted.
	The Government recognise the concerns which have been presented to us. We have also listened carefully to the views expressed in debate, not least that caps set by reference to historical income levels appear increasingly arbitrary. The Government sympathise with and understand the intention and spirit behind today's amendment.
	In our previous debates on this issue I made clear the Government's desire for a wider debate on the cap. Following the outcome of the judicial review on the current legislation, it is our intention to begin a review to address precisely how to strike the right balance between protecting NHS services for NHS patients and allowing NHS foundation trusts the flexibility they need to operate effectively in the best interests of patients. This would mean a review of the cap and appropriate action to follow.
	I turn to the specifics of the amendment. It is quite right that to change the cap would require primary legislation. However, I have genuine concerns about the approach that the amendment takes and about rushing into any quick legislative fix. I would like to take a few moments to set out some of the issues raised by the amendment and explain why a broader review following a clear process would be a better and more practical route to take and be in the best interests of the NHS.
	As your Lordships know, this is a complex policy area. The fact that we have already discussed it twice, in Grand Committee and on Report, highlights both the range of views that need to be taken into account and the difficulty of crafting legislation.
	The amendment would enable the Secretary of State to make exceptions to the current cap. However, it would not remove the cap's underlying principle that the private income of a foundation trust should be restricted according to levels set in 2002-03. The Secretary of State would be able to use regulations under the amendment to create exemptions to the cap; for example, to allow mental health foundation trusts to carry out private patient work. However, legal advice is that those regulations could not be used to such an extent that the effect of the underpinning primary legislation was nullified. In short, we could not use exemptions to get rid of the underlying rule. The level playing field which was described in Committee by the noble Baroness, Lady Meacher, with a new system having an equal impact on both NHS and foundation trusts, would not be achieved.
	As noble Lords will be aware, a judicial review is currently considering what income counts towards the cap. The Government are an interested party in the legal proceedings, so I will not comment on the interpretation of the current provisions. However, noble Lords will wish to be made aware that, even if this amendment were accepted, there would still be the issue of what income counts towards the cap. The court will give a judgment on that issue.
	We might best describe this as a quick-fix solution, and I understand why people would be tempted by it, but it would not address the issues and underlying problems with the cap that we have discussed. We need a wholesale review of the underlying rule. The Government believe that the best way to reform the cap would be to create a new test or set of principles that would apply equally to all foundation trusts, reforming the rules so that they are clear, logical and work well. We are keen not to replicate the current situation with the cap from the 2003 Act by bringing in new primary legislation without first discussing and testing it thoroughly with the NHS—the people who will put the new arrangements into practice.
	We have heard in our discussions the wide range of views on the issue. Key stakeholder organisations inside and outside the NHS should be given the opportunity to contribute to a debate on the design of the new framework which should begin as soon as the judicial review is complete. We should not try to reach a consensus quickly on what the future framework should look like without consulting foundation trusts from the outset. The reform of rules that impact directly on them, in the context of an evolving health policy framework, needs to be considered in the round.
	We agree that private patient activity should not lead to a poorer service for NHS patients and that private income should subsidise NHS care and, therefore, be used to improve and widen NHS services. We also agree that NHS foundation trusts must above all preserve and promote the values of the NHS. We therefore need to go through a clear, fair, practical process to develop fully the best policy solution before we legislate—which we will of course do at the first opportunity once the approach has been agreed.
	I repeat our commitment to take forward a review following the outcome of the current judicial review. This is the most sensible way of making sure that any new approach reflects the views of those affected and enables us to test those practical solutions. With this assurance in mind, and with thanks to noble Lords for the valuable contributions they have made to the discussion, I hope that the noble Baroness will withdraw the amendment.

Baroness Meacher: My Lords, I thank the Minister for her comments. I recognise that the amendment does not answer all the problems that the cap poses for the NHS—that is inevitable. However, the amendment does enable—quickly—some opportunities for rational decision-making that are not there at the moment.
	The amendment clearly places in the Bill a principle that has the support of all sides of the House. I have been given assurances that there are people in the Government who do not have a problem with it, because it is going in the direction that the noble Baroness, Lady Thornton, indicated the Government want to go in. We are saying, "Let us take a step forward in the direction that the Government want to go".
	When the Government are able to institute a review, we would all hope to be involved in it, contribute to it and support it. Then, if possible, a consensus can be found through a good consultation process in which all the issues can be resolved, and a set of principles wider than we are able to deal with today can be put into a future Bill. However, that is all for the future. There is no upcoming health Bill, and the issues are too important to leave for an unspecified opportunity in the future. NHS foundation trusts up and down the country are struggling with this. In my view, having the principle in the Bill will affect how people operate. We have boards of governors and members councils out there that will be watching this and will know that the principle is in the Bill—if we can get it in the Bill. Personally, as somebody who passionately believes in the NHS and NHS patients, I want—and we want—that principle in the Bill. Therefore, I wish to test the opinion of the House.

Division on Amendment 15
	Contents 191; Not-Contents 133.
	Amendment 15 agreed.

A privilege amendment was made.
	Bill passed and sent to the Commons.

Marine and Coastal Access Bill [HL]

Copy of Bill
	Explanatory Notes
	Amendments
	1st Report Delegated Powers Committee
	1st Report Constitution Committee
	11th Report Joint Committee Human Rights

Report (2nd Day)

Clause 49 : Marine plans for marine plan areas
	Amendment 75A
	 Moved by Lord Hunt of Kings Heath
	75A: Clause 49, page 25, line 17, leave out "section 57" and insert "sections 57 and (Meaning of "retained functions" etc)"

Lord Hunt of Kings Heath: My Lords, I will speak to other government amendments in this group as well. The amendments appear complex, but I reassure this House that nothing in them changes whether a function is devolved, or on whom it is conferred. The only effect is to classify functions as either "retained" or "devolved" for the purposes of this part of the Bill and, in particular, for deciding when the marine policy statement should influence public authority decision-making.
	Since additional procedural requirements will apply to any devolved marine plan which is intended to affect "retained"—in other words, "non-devolved" functions—it is therefore important that we get the definitions right, and that they are capable of adjusting to the nuances of the different devolution settlements. Otherwise the risk is that we may find that plans could be prepared which affect UK functions without having gone through the correct procedure, or, alternatively, that we are inappropriately constraining the exercise of functions which have been devolved.
	The policy which lies behind the amendments is straightforward and is unchanged from the Bill as published in draft and as introduced. If the marine policy statement has been adopted by the policy authority for a marine planning region, then it will be a "relevant marine policy document" for all decisions made by any public authority in relation to that region. Similarly, if a marine plan has been adopted for an area and the plan meets the conditions set out in Clause 57(4), then that plan will also be a "relevant marine plan document" for all decisions in relation to that area. However, the devolution settlements are different for each devolved Administration and use different terminology, which must be properly used to ensure that this Bill has the right effect in practice.
	Clause 57(5) presently sets out the effect of the marine policy statement on different decisions. Amendments 91A to 91F amend the present Clause 57(5) to clarify it and insert the new terminology of "secondary" devolved functions and so on, which are used in the new clause inserted by Amendment 91N.
	At the same time, Amendment 91G removes the present definition of "retained functions" in Clause 57(7) and (8). Amendment 91N inserts a new clause which defines "retained functions" by providing that all functions are "retained" unless they fall within the classes listed in subsection (1). The subsequent subsections in the new clause provide further detail as to the scope of each of the classes listed in subsection (1). In particular, neither "secondary devolved functions" nor "relevant ancillary functions" can be considered "devolved" if the UK Government still have substantive functions in relation to them.
	Finally, Amendments 91H to 91M and 126B update or insert a number of definitions as a result of the changes to Clause 57 and the insertion of the new clause, while Amendments 75A, 77A and 99A update the cross-references to "retained functions" throughout the Bill to refer to the new clause.
	I am confident that this drafting delivers the right result and properly respects both UK "retained" functions and the competence of the devolved Administrations. I beg to move.

Lord Livsey of Talgarth: My Lords, I shall respond to what the Minister says, first in relation to Wales. The amendments are complex and appear to be complicated, but I have read them thoroughly and, speaking specifically about Wales, I am satisfied that he has covered what I regard as the important points.
	Amendments 75A and 77A are welcome, in that they spell out clearly the meaning of "retained functions" in relation to devolved authorities and legislatures. Amendment 91A would define what happens if a devolved policy authority adopts an MPS. There then follows a series of consequential amendments, Amendment 91B to 91G. Amendment 91H rightly describes the Counsel General to the Welsh Assembly Government, as he or she is the most senior legal officer in the Assembly and Government of Wales.
	Amendment 91K defines the description of the First Minister in the Government of Wales Act 2006. Prior to that, between 1999 and 2006, the title of First Minister was not entirely secure in legislative terms. It also separates out a non-departmental government authority from Welsh Ministers and the legal officer.
	The group follows on in Amendment 91M to define exactly what a primary devolved authority is in relation to a devolved policy authority. This gives clarity to the legislation as far as Wales is concerned. Amendment 91N is helpful in defining the retained functions for Wales. It spells out where the Welsh ministerial functions lie, and also in relation to joint functions, an interesting aspect of the Minister's amendment.
	Given that the Marine and Coastal Access Bill includes matters that directly impact upon Wales, the Welsh Assembly Government and the National Assembly of Wales, Amendment 91 is particularly helpful in defining the parameters which I am sure that the devolved bodies in Wales will absorb. Amendments 99A and 126B give further clarification, Amendment 126B on town and country planning legislation. On the whole, having looked at the detail of Minister's amendments, I think that I can make sense of them.

Baroness Carnegy of Lour: My Lords, I remember, during the passage of the Scotland Act through this House, the late Lord Mackay, who was on the Front Bench for us, saying that the lopsided type of devolution that we were adopting would lead to great complexity in legislation. He said that we might well end up with a federal system simply to get the simplicity. That is probably not what we want.
	This is a perfect example of what lopsided and uneven devolution brings about in legislation. The Bill is getting fatter and fatter. Quite honestly, it is becoming pretty confused as we go along. I am sure that these amendments are necessary but, unlike the noble Lord, Lord Livsey, I cannot comment on them in detail; I dare say that my noble friend on the Front Bench may do so. However, one day, we will have to simplify all this. Quite honestly, one definition leads to the need for another. It is pretty confusing.
	I trust that the Government have got it right and that, if somebody spots further faults here, they will be put right in the other place. In the mean time, however, I support the amendments.

Baroness Hamwee: My Lords, I thank the Minister for the extremely helpful letter that was sent to Peers showing, in language that was not that much easier but in more narrative form, the effect of these amendments. I congratulate him on the final paragraph in the annexe dealing with this suite of amendments. He repeated the first sentence of it about his confidence that,
	"this drafting delivers the right result".
	Yet I cannot resist sharing with the House the second sentence, which reads:
	"Whilst it will never be possible to draft for every eventuality, it must be remembered that the duty to act in accordance with the MPS and plans permits public authorities to take other 'relevant considerations' into account, which enables flexibility in the future to adapt to unforeseen circumstances".
	I thought that was masterly.

The Duke of Montrose: My Lords, I also wish to thank the Minister for explaining his amendments in such a succinct fashion, especially on the back of the very comprehensive briefing that he gave us, which I picked up in my post yesterday afternoon. I am also grateful to him for admitting that it is a complex group, but I am glad to respond because it touches on an area that has exercised my mind since we first began considering the Bill. How far are we aware of what powers are devolved to which Administration, and will all the authorities find clear definition of where they are allowed to exercise authority in the future? Certainly, this group of amendments is a good attempt to address that.
	Amendment 75A, which is put in more or less as a consequential amendment, is pretty far-reaching. Every marine authority drawing up its plan will have to state where it sees retained functions being involved. Will that be subject to review by the Secretary of State as part of the approval process? Will the list be confined to retained functions within marine legislation, FEPA legislation and renewable energy legislation or will it have to take in the overarching areas of retained functions such as defence, marine shipping and minerals?
	It is very appropriate that this area should be subject to fairly detailed clarification in the Bill, as most of those who have spoken have mentioned. I am glad that it has been in the hands of proper parliamentary draftsmen, as I am not sure anyone else could have battled their way through all the different bits of devolved legislation that are necessarily hard for us to follow. Perhaps once these provisions are in the Bill, those with a sharper brain than mine will see whether there are areas that need tidying up.
	I am glad that the Government have addressed the question of where the powers lie for any authority that withdraws from a marine policy statement. I think the Minister is aware of my misgivings about the possibility that an authority might not bother to withdraw but simply ignores the directions that are contained within the relevant marine plan. He tried to reassure me about that in Committee. Otherwise, I am much encouraged by the group of amendments.

Lord Hunt of Kings Heath: My Lords, first, I am grateful for the general welcome there has been for this group of government amendments. Let me reiterate that it is extremely complex and I am very grateful for the tolerance shown by noble Lords in this debate.
	I welcome the comments of the noble Lord, Lord Livsey, about clarity. I thought that his analysis from a Welsh point of view was impeccable. The noble Baroness, Lady Carnegy, reminded us of the riveting debates on the Scottish Bill as it went through your Lordships' House. We all of course recall Lord Mackay and the contribution he made to those debates and that legislation. He is still very much missed in your Lordships' House.
	I do not quite agree that we have lopsided legislation—

Baroness Carnegy of Lour: My Lords, lopsided devolution was the phrase; it is not a rude term but a statement of what we have. Legislation is not even between different parts of the country. We have legislated differently for different areas. That is why we referred to it at that time as lopsided devolution.

Lord Hunt of Kings Heath: My Lords, I am grateful, but one person's lopsidedness is another person's flexibility in meeting the circumstances of each devolved Administration.

Lord Livsey of Talgarth: My Lords, the noble Baroness, Lady Carnegy, is not a lone voice in this. The situation in Wales is not satisfactory. We should much prefer to have the kind of settlement that Scotland has had; if we did, we would not have such complex legislation in front of us today.

Lord Hunt of Kings Heath: My Lords, although it is very tempting to debate particular aspects of devolution in relation to Scotland and Wales, I had better desist from doing so. However, I say to the noble Baroness, Lady Carnegy, that I very much hope that the end result is not a federal system of government. On the 10th anniversary of the establishment of the Scottish Parliament, the polling showed up some very interesting results, which were encouraging for those of us who believe that the Union has much for which to commend itself. However, I realise that the more I speak, the more I tempt noble Lords to debate devolution in general.
	Regarding the specifics of my amendments, noble Lords may ask why it has taken until now for the Government to provide the clarity required. The short answer is that the final discussions between the devolved Administrations and the UK Government that took place in the autumn—which led to the confidence that I have stated in this House before that we can make this work from the UK's point of view—meant that a lot of work then had to be done to ensure that the Bill was up to scratch in relation to the devolution settlement. We have been working very closely with counterparts in Scotland, Wales and Northern Ireland and with parliamentary counsel in going through the detail of this revised clause. Of course, the framework of responsibilities within the devolution settlement is extremely complex, but I am confident that we now have it as right as it can be. I say to the noble Baroness, Lady Carnegy, that if we spot further changes that need to be made, there will be another opportunity to do so. I hope that that will not be necessary but, as a result of these amendments, we now have the support of all the devolved Administrations regarding the definitions that we are proposing.
	I am grateful to the noble Baroness, Lady Hamwee, for her comments on my extremely lengthy letter. She is right to say that I left a caveat in the penultimate sentence, but that is just a sensible precaution and I do not think that anything more should be read into it.
	In Committee, the noble Duke raised his concern that this is a very complex area. Although we are confident that we have it right, and the UK Government and devolved Administrations understand their respective responsibilities, ensuring that that is communicated to all the people who will be affected by this legislation in the future is a considerable challenge. He is right about that, and we will have to think very carefully, as will the other Administrations, about how that is to be done.
	Regarding the noble Duke's specific question, my understanding is that the public authorities already know which functions are devolved and which are retained, so we do not think that that is particularly an issue. I reiterate, as I have done on many occasions, that Part 3 does not affect the devolution settlement, however much the noble Lord, Lord Livsey, wishes that it does.
	Amendment 75A agreed.
	Amendments 76 and 77 not moved.
	Schedule 6 : Marine plans: preparation and adoption
	Amendment 77A
	 Moved by Lord Hunt of Kings Heath
	77A: Schedule 6, page 231, line 32, leave out "section 57" and insert "sections 57 and (Meaning of "retained functions" etc)"
	Amendment 77A agreed.
	Amendment 78
	 Moved by Baroness Hamwee
	78: Schedule 6, page 232, line 5, at end insert—
	"( ) the Scottish inshore region,"

Baroness Hamwee: My Lords, I beg to move Amendment 78 and will speak also to Amendment 79, but not at any length on either. I will probably demonstrate that, helpful as I have found the Minister's letter, I have still not got to grips with the devolution aspects of the Bill.
	The first of my amendments is to paragraph 3(2) of Schedule 6, where we are told that:
	"The marine plan authority for —
	(a) the English inshore region, or
	(b) the Welsh inshore region,
	must also take all reasonable steps to secure that any marine plan for a marine plan area ... is compatible with the relevant Planning Act plan for any area in England, Wales or Scotland".
	My amendment would add a further reference to Scotland, because I seek to understand how this paragraph works. I am certainly not trying to interfere with the devolution settlement. I wrote down a number of possibilities as to what it might mean, and I have crossed out most of them in my notes; I do not want to demonstrate my ignorance absolutely and totally. I wondered whether it was because of the reference to adjoining and adjacent areas in the next sub-paragraph, but I would be grateful if the Minister explains how paragraph 3(2) operates as regards Scotland.
	Amendment 79 would take out the words "all reasonable steps". Taking all reasonable steps to ensure compatibility, by definition, raises the issue of conflict and begs the question: what if they are not compatible?

Baroness Carnegy of Lour: My Lords, I may be wrong, but it seems that Amendment 78 is not appropriate. Under Clause 48(1)(a), the Scottish inshore region is not applicable in the Bill. One cannot legislate for it in this Bill.
	The way the waters of Scotland are now dealt with in the Bill is somewhat confusing. I do not think there is any way round it and the Scottish Parliament is quite happy about this. The Scottish inshore waters are being legislated for in the Scots Parliament; it is busy getting on with that now. The offshore waters are the mixture of one parliament responsible for some things, and another for others. How the boats sailing between the two will cope remains to be seen, but this is the arrangement we have. I do not think I could support Amendment 78, because I do not think it is applicable.

Lord Wallace of Tankerness: My Lords, I welcome the probing nature of my noble friend Lady Hamwee's amendment, and her reassurance that she does not intend to impede on the devolution settlement. It raises and helps to focus on an issue which arises out of the boundary between the south-west of Scotland and the north-west of England in the Solway Firth. There were amendments in Committee which I and the Government brought forward to address this.
	Since then I have received representations from Mr Gordon Mann of the Solway Firth Partnership about concerns which the partnership has about the future of marine conservation in the Solway Firth. That partnership was established in the early 1990s in response to the growing issue of integrated coastal zone management. In the Solway Firth a particular need was identified to have well joined-up integrated coastal zone management, not least because of the national boundary that goes though it. That boundary inevitably increases the number of agencies involved, operating under different legal systems north and south of the border, and different cultures north and south of the border can lead to different management arrangements. Therefore, I understand that the partnership has been worth while in bringing people together from the Scottish and English sides of the Solway Firth to identify issues and actions that are necessary to secure an environmentally sustainable future of that sea.
	The concern now being expressed is that there is no likelihood of sufficient consistency and co-ordination between the MMO, which will be established under this legislation, and the work done by Marine Scotland, which has already been established as an executive agency of the Scottish Government and which will operate under the Marine (Scotland) Bill that is currently before the Scottish Parliament. Assurances have been given, but they have no statutory foundation. It is believed that here is a real need for joint planning. Having been born and brought up in Annan in Dumfriesshire on the Solway Firth, I know only too well that here we have an ecosystem that does not recognise a national boundary. Therefore, it is important that there is some kind of shared responsibility.
	I understand that under the Scottish Bill, Marine Scotland will have the power to delegate the preparation of a local plan. That power of delegation is not available to the MMO. Defra has responded to representations that there will be an obligation to consult, but that is not believed to be sufficient. The amendment raises the issue of whether there is an interaction between the responsibility of Scottish Ministers and the inshore plan which directly impinges on an English inshore plan. Perhaps the Minister will indicate a willingness to engage with those who have an interest in the ecosystem and the management of the Solway Firth, so that when the Bill arrives in another place further consideration will have been given to identify whether there are sufficient mechanisms in place to address important issues and underpin the work that has been done since the early 1990s in trying to get a co-ordinated approach to coastal management in the Solway Firth.

Lord Davies of Oldham: My Lords, I was enjoying my noble friend's response to a question about the difficulties of the devolution settlement, thinking that I had a rather straightforward amendment to deal with. But I am now faced with the situation in which the noble Baroness, Lady Hamwee, wants clarification; the noble Baroness, Lady Carnegy, thinks that the amendment has nothing to do with the Bill; and the noble Lord, Lord Wallace, is asking about the boundary of the Solway Firth. I am in deep waters here, my Lords—I am not sure how deep the Solway Firth is, but I am going to struggle.
	Let me begin with the relatively sunny uplands before I get to the deep waters of the Solway Firth. Let me say—

Lord Wallace of Tankerness: My Lords, in many parts the Solway Firth is quite shallow, but it has treacherous tides.

Lord Davies of Oldham: My Lords, we know all about treacherous waters, don't we? Let me say to the noble Baroness, Lady Hamwee, that I have little to add to what the noble Baroness, Lady Carnegy, said. Clause 48 sets out the marine plan authorities, and it does not include a marine plan authority for the Scottish inshore region because the Marine (Scotland) Bill, now being considered by the Scottish Parliament, covers planning for the Scottish inshore region. As there is no marine plan authority under this Bill for the Scottish inshore region, we cannot place obligations on something that does not exist. The valid point made by noble Lords will need to be considered in the context of that Bill when the Scottish Parliament is considering it, and we will of course draw its attention to the issues raised today. But this is very much a matter for that Bill and its consideration, and without grievously affecting the devolution arrangements we could not in this Bill legislate in that context for Scotland. That is why we do not propose to do so, and therefore I hope that the noble Baroness will regard her Amendment 78 as a probing one and will feel that she has received a satisfactory answer.
	Amendment 79 is different. It would remove the wording relating to "reasonable steps"; in effect, that would make full compatibility mandatory and take away any reference to what is reasonable in the circumstances. Let me begin by reiterating that compatibility between terrestrial plans is extremely important. We want to see a seamless, integrated approach at the coast—not least on the Solway Firth, which the noble Lord, Lord Wallace, identified. We included paragraph 3 in the Bill to acknowledge the Joint Committee's recommendation that we needed to make that very clear. Yet ensuring absolute compatibility—rather than working towards as much compatibility as we can achieve—is not something that we can guarantee without disproportionate cost.
	The resources required by a maritime plan authority under an absolute duty to ensure compatibility with any related terrestrial plans, not just those adjoining or adjacent to the marine plan area in question, would be absolutely enormous. Beyond doing everything reasonable to ensure that plans are compatible, it could require the marine planners to imagine and work through every possible combination of potential development, location and circumstances to identify any situation in which the two plans might conflict.
	In our earlier debates on the need for consistency between the marine policy statement and national policy statements, the noble Baroness herself acknowledged the near impossibility of eliminating all potential conflict, particularly between "two sets of statements" that may have,
	"developed at different times, with slightly different considerations". —[Official Report, 5/5/09; col. 509.]
	That is how she expressed the problem. She also described the absence of any conflict as,
	"the best of all worlds".—[Official Report, 28/1/09; col. 330.]
	That burden of ensuring total compatibility would not and could not fall only on the marine plan authority, which would necessarily need to work closely with the terrestrial plan authorities to ensure a shared understanding of how terrestrial planning policies were expected to be interpreted and how they would relate to marine policies.
	With no limit of what is reasonable, this process could go on indefinitely, delaying the implementation of any marine planning and increasing the cost of the exercise for both terrestrial and marine authorities. That would obviously make it difficult to achieve our goal of preparing effective and, as far as we can obtain them, compatible plans for the whole inshore region in reasonable time. For the reasons that I have identified, an absolute duty is, as I am sure that all those in the House would recognise, an obligation that we could not put into the Bill.
	We have drafted an equal arrangement, which we think will assist planning authorities both on land and at sea to reach meaningful agreement on how their plans should work together. We cannot ask the marine plan authorities to do more than is reasonable or to throw unlimited resources at what might be a well-nigh impossible goal of eliminating any potential for conflict. We will strive for full compatibility; that is the philosophy behind the Bill. Compatibility is in everyone's interests, but it has to be within the bounds of what is reasonable and practical, both in terms of resources and time.
	There are safeguards in place. Both the marine and terrestrial plans are subject to extensive public scrutiny, providing as many eyes and minds as possible to help identify and eliminate any potential incompatibilities. This is not about picking and choosing whether to be compatible with terrestrial plans, but the duty is clear: to do everything reasonable to ensure that marine plans are compatible with them. If plans were incompatible without good reason they would, of course, be open to challenge.
	Every time marine or terrestrial plans are updated, each always having regard to the other, they will become more closely and effectively integrated. In reality, we think the potential for significant conflict is low, but to imagine that it could be taken out altogether is not sensible. As we said last week, planners are expert at integrating and reconciling government policies when making their decisions, and we should acknowledge that level of expertise.
	I am confident that the mechanism we have proposed, by which marine planning authorities must take all reasonable steps to ensure compatibility with terrestrial plans and, in return, terrestrial planning authorities will have regard to national policies, including the MPS and marine plans, is the right balance. It is not the function of this legislation to set an impossible task for the marine planning authorities, as I hope the noble Baroness will recognise. Decision-makers may always take into account other relevant matters, such as contradictory plans. Of course, it is a decision-maker's job to be good at resolving such situations. We should trust them to do so within the framework of the legislation which, clearly, indicates that compatibility should be striven for, but not to the point where it becomes an absolute goal which is unrealisable.
	I say to the noble Lord, Lord Wallace, that I struggled with the Solway Firth. He will have to give me a little more time to think about that issue. He will appreciate fully that we await the progress of the Scottish Bill for the arrangements which will be made for Scotland. I am all too well aware that in all legislation of this kind the issue with regard to a boundary is always of importance and the boundary which involves a fluctuating ecosystem is particularly difficult. I shall write to the noble Lord on that point as I do not have an answer with that level of detail. I hope that he will accept that the framework of the Bill, in the context of the areas that it covers as far as England and Wales are concerned, strives to assert that there will be the necessary reconciliation of interest. That will apply as much to England and Scotland as to other parts.

Lord Wallace of Tankerness: My Lords, I am grateful that the Minister will write to me. I did not expect a detailed answer. Will he also give an indication of the willingness of his officials to engage with those of us on both sides of the Solway Firth to see whether things can be done to ensure that the two legislatures can dovetail to find a solution which he would be willing to engage with as the Bill proceeds to another place?

Lord Davies of Oldham: My Lords, as regards the Scottish counterpart, before this legislation was drafted there was a substantial exchange of views. As this Bill and the Scottish position develop, there will be an opportunity for full consultation. I am happy to give him that assurance. I prefaced my remarks in response to this amendment by indicating that, as regards England, it will be necessary to search for agreement and compatibility, in the context of this Bill. When the boundary of England and Scotland is involved, exactly the same principles must obtain.

Baroness Hamwee: My Lords, I should know better than to try to table probing amendments seeking to understand what the legislation means. I thought that if I took out the words "or Scotland" I would draw opprobrium. That would have been another way of approaching it. I was not seeking support for either amendment, but if my noble friend would like me to table another dumb amendment—to which he might not want to put his name—at a later stage, to allow the Solway Firth to be debated further, I would be happy to help.
	I am not sure that I am any wiser about the second amendment. The only words that the Minister used that answered my question were "open to challenge". My problem is that I do not know if this needs further discussion, but I can see that it will not happen this afternoon. I beg leave to withdraw the amendment.
	Amendment 78 withdrawn.
	Amendment 79 not moved.
	Amendment 80
	 Moved by Baroness Hamwee
	80: Schedule 6, page 236, line 20, at end insert—
	"(c) the extent to which matters raised in representations have been resolved,"

Baroness Hamwee: My Lords, Amendment 80 is on a different subject. It follows a debate in Committee about whether there should always be an independent investigator. In resisting that amendment, the Minister said:
	"Our aim is to ensure that the plans prepared have the support of the local community as well as the various industries, interest groups and regulators who, in one way or another, will be using the plan or subject to it. It is clearly in everyone's interest to ensure that issues are resolved and consensus reached where possible".
	The Minister went on, understandably:
	"It will inevitably not be possible to please all of the interests all of the time".—[Official Report, 23/2/09; col. 25.]
	My amendment simply adds consideration of the extent to which matters raised in representations have been resolved. I have simply aimed to encapsulate the Minister's explanation and to pin the matter down a little more. That is the quite straightforward purpose of Amendment 80, unless somebody tells me that it means something completely different. I beg to move.

Lord Davies of Oldham: My Lords, last time I did not satisfy the noble Baroness with my response to her amendment, although I spoke at some length. I have a reasonably lengthy reply to this amendment, but the note from my officials also says, "This amendment seems sensible and we should consider it". We will.

Baroness Hamwee: My Lords, I am very grateful. I beg leave to withdraw the amendment.
	Amendment 80 withdrawn.
	Amendment 81 not moved.
	Clause 52: Duty to keep relevant matters under review
	Amendment 82
	 Moved by Lord Hunt of Kings Heath
	82: Clause 52, page 27, line 6, at end insert—
	"( ) The reference in subsection (2)(a) to the cultural characteristics of the authority's region includes a reference to characteristics of that region which are of a historic or archaeological nature."
	Amendment 82 agreed.
	Amendment 83 not moved.
	Amendment 84 not moved.
	Amendment 84A
	 Moved by Lord Wallace of Tankerness
	84A: After Clause 52, insert the following new Clause—
	"Duty to further the conservation of biodiversity in the Scottish Offshore Region
	(1) It is the duty of every public body and office-holder, in exercising any functions in the Scottish offshore region, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.
	(2) In complying with the duty imposed by subsection (1) a body or office-holder must have regard to—
	(a) any strategy designated under section 2(1) of the Nature Conservation (Scotland) Act 2004 (asp 6), and
	(b) the United Nations Environmental Programme Convention on Biological Diversity of 5 June 1992 as amended from time to time (or any United Nations Convention replacing that Convention)."

Lord Wallace of Tankerness: My Lords, in moving Amendment 84A, I will speak also to Amendment 84B, because I see them very much as alternative amendments. Amendment 84B is in the same terms as the amendment that I proposed in Committee. I indicated then that it was, in essence, a probing amendment to try to identify the extent—if any—to which the Scottish Parliament had a power to legislate to impose a duty of biodiversity on public bodies in the same manner as it had for issues in terrestrial Scotland and the seaward limit up to 12 nautical miles. Could it do so for what we have come to know, lovingly, as the offshore region, which extends from 12 to 200 nautical miles?
	It was clear from that debate that the current devolution settlement did not provide for the Scottish Parliament to be able to do that; nor, indeed, did the agreement that was reached between the United Kingdom Government and all the devolved Administrations on how to proceed with regard to marine management. The structure, which we have now discussed many times, is one of executive devolution, rather than legislative devolution, hence the very specific power that would be given under Amendment 84B. It would give the Scottish Parliament a power—if it wished to exercise it—that would allow Ministers to incorporate a general duty of biodiversity on public bodies when bringing forward the marine plan for the Scottish offshore region.
	It is recognised, too, by the Scottish Government that their competence is limited in this. The Scottish Cabinet Secretary for Rural Affairs and the Environment, Richard Lochhead, said as much to the Liberal Democrat spokesman on marine issues, Liam McArthur, when the matter of the legislative consent motion was before the relevant committee of the Scottish Parliament in January of this year.
	Marine Scotland is the executive arm of Scottish Ministers and has responsibility for marine science, planning, policy development and management. Amendment 84A would enable the United Kingdom Parliament to confer on public bodies a responsibility for biodiversity. Amendment 84B would enable Marine Scotland, in taking forward its responsibilities, to have that power if the Scottish Parliament so wished. The wording used is in the Nature Conservation (Scotland) Act 2004, which, as I have indicated, extends at the moment only up to the 12-mile limit.
	It is clear that executive devolution will not confer powers on Scottish Ministers, but imposing this duty on public bodies has certainly been supported in Scotland. Under the previous Administration in the Scottish Parliament, the Advisory Group on Marine and Coastal Strategy was set up to look at the whole issue of the marine environment and it published its report in March 2007. It had a number of working groups and work streams and, in its contribution to the report, the work stream relating to marine nature conservation said:
	"From the marine nature conservation perspective, the main requirement is that measures relating to nature conservation can easily be integrated across administrative boundaries, including the boundary currently placed at 12 nautical miles ... and that these can be integrated into measures for the wider regional seas (however these are defined)".
	It went on to recognise that because the devolution settlement is as it is, that would require Westminster legislation; that it was not at the hand of Scottish Ministers.
	In its concluding paragraph, the report of the work stream states:
	"While it is not specifically a Scottish competence, and thus outwith the remit of AGMACS, we also support the proposal to extend species protection measures equivalent to those in the Wildlife & Countryside Act 1981, as amended by the Nature Conservation (Scotland) Act 2004, into the zone from 12 to 200 nautical miles"—
	I understand that that has been done under subsequent regulations—
	"and to extend the 'biodiversity duty' on all public bodies and office holders into this zone, and would commend the definition of that duty in the Nature Conservation (Scotland) Act".
	So there has been a recommendation that the duty should be extended into the offshore.
	The Scottish Government, in their consultation White Paper, Sustainable Seas for All, indicated that they wished to see the biodiversity duty on all public bodies. The paper states:
	"If Scottish Ministers achieve further devolution of nature conservation in the offshore beyond 12nm, the Scottish Ministers would propose extending the scope of the duty to apply to all public bodies exercising functions in the offshore area. If further devolution cannot be agreed we would discuss with the UK Government how best to take forward this proposal".
	It is clear that only a limited devolution has been agreed which does not allow Scottish Ministers to do this. The amendments offer the House a choice: we can either devolve that power to the Scottish Parliament or, because it is stated in the devolved settlement that this Parliament would take the lead in this area, we can, perfectly properly, legislate to impose that duty, which quite clearly enjoys support north of the border.
	When the matter was debated on 23 February, the Minister stated in his reply:
	"On biodiversity, the simple and straightforward answer is that, although we do not use the wording used by the noble Lord, we believe that we have covered the matter in the Bill. In Clause 121, there is a duty on public bodies, including those in the Scottish offshore area, to further the conservation objectives of designated sites. Moreover, public authorities must have regard to advice from the statutory conservation body, which, for the offshore region, is the Joint Nature Conservation Committee".—[Official Report, 23/2/09; cols. 15-16.]
	The point is that the duty is not solely for designated sites; it is a general duty for public bodies when exercising functions in relation to the offshore area which is set out in more detail in the Nature Conservation (Scotland) Act and incorporated by reference in the amendment. Scottish Environment LINK told me recently that it does not believe that the present legislation goes far enough, nor is it competent for the Scottish legislation to cover it. It is concerned that there is a gap in the arrangements which it is the purpose of this amendment to bridge.
	I hope that the amendment will commend itself to your Lordships' House. Both Governments are keen to ensure a marine ecosystem where nature conservation is taken forward. A gap has been identified; I do not believe that this legislation addresses it; and the purpose of my amendment is to ensure that a proper biodiversity duty is put on public bodies so that the boundary line at 12 nautical miles becomes meaningless. It seems a nonsense that a duty exists up to a certain point but not at 12.5 miles from the coast. The amendment seeks consistency right up to the 200-mile limit. Therefore, I beg to move.

The Duke of Montrose: My Lords, I thank the noble Lord, Lord Wallace, for tabling the amendments and probing the whole question of biodiversity and conservation, which we are concerned with in all areas of the United Kingdom as much as in Scotland. Many amendments have been tabled at all stages of the Bill which show the level of concern about the difficulties that could arise from the various approaches to conservation that different authorities may take.
	I do not envy the Minister in responding to these concerns. Not only are devolution arrangements impossibly complicated but the system of agreement means that the effect of a change in one arm is not readily apparent in another. The Government claim to be covering one element of the concerns of the noble Lord, Lord Wallace, by devolving responsibility for the implementation of the EC wild birds and habitats directives to the Scottish Executive for offshore waters adjacent to Scotland. How and when will that take place?
	The Bill mentions sustainable development as one of its aims. Including biodiversity places a constraint on that concept. The Government have provided a draft strategy for marine protected areas, which most noble Lords here today will probably have recently received. In it, the Government emphasise biodiversity for England and Wales, but I do not think that biodiversity is mentioned in the Bill. Too strict an interpretation of biodiversity could create a problem if some new species or organisms were introduced that were detrimental to other elements of current biodiversity. Introducing a species increases biodiversity, but there is a choice to be made as to whether it is beneficial.
	I have heard scientists explain recently that we may find as we progress into the future that ecosystem evaluations are of greater importance than biodiversity evaluations—the Government talk in their draft strategy about ecosystem service provision. If powers are to be given to the Scottish Parliament, it may be highly restrictive if they are to be limited to biodiversity.
	Amendment 84B would place a duty on Scottish bodies that is not placed on others. I shall therefore listen to the Minister's response with much interest.

Baroness Carnegy of Lour: My Lords, the noble Lord, Lord Wallace, said that there was a gap, and he is perfectly right. This is one of the strangest parts of the Bill. Ministers in the Scots Parliament decide things and Westminster legislates, as I understand it—that is the problem. One has to realise that, when you move out into offshore waters away from Scotland, you come to areas where energy comes into it—where actual and potential oil fields exist. There could be a conflict of interest between, say, the excavation of a potential oil field and the need to protect natural diversity at sea. It is very important that the same legislature should be legislating for those two things. As it stands, it is the Westminster Parliament.
	We must be very careful about this. Already the Scots Parliament and Ministers are referring to offshore as well as inshore waters as "Scottish waters"—they are blurring the distinction. If we blur it further, we may be in trouble. For the United Kingdom, oil is a very different matter from biodiversity in those parts of the sea. It is a very important issue that could affect devolution and whether Scotland one day might become independent. We have got to be very careful about this. I can understand that this may be a solution to the gap, but I am afraid that the gap must continue to exist, inelegant though it is in the context of arrangements in the Bill.

Lord Hunt of Kings Heath: My Lords, once again the noble Baroness has put her finger on some general principles. I will start by making it clear that under the existing devolution settlement, the Scottish Parliament has legislative competence in the offshore area for commercial fishing and for the extraction of marine aggregates. In addition, it has executive responsibility for marine licensing and renewable energy. The UK Government currently retain sole responsibility for defence, oil, gas exploration and exploitation, shipping and nature conservation. Assuming that the Bill receives Royal Assent in its current form, the Scottish Government will be given executive responsibility for designating marine conservation zones in the offshore area, subject to the agreement of the UK Government. The Bill will also give the Scottish Government executive responsibility for marine planning in the offshore area—again subject to the agreement of the UK Government.
	The Scottish Government will retain the other functions that it already enjoys, but I say to the noble Baroness that the UK Government will retain sole responsibility for defence, oil and gas exploration and exploitation, and shipping. The exercise of such functions will, however, be subject to any relevant marine plan, provided that Scottish Ministers have adopted the marine policy statement.

The Duke of Montrose: My Lords, I thank the Minister for giving way. Am I completely out of the picture when I say that energy reserves include coal?

Lord Hunt of Kings Heath: My Lords, we will come to the question of coal later. As I am struggling to find the flag that I have used to identify the issue in my notes, would the noble Duke be content if I answered the point later? I knew that he would raise the issue of coal: alas, I thought that it would be later. I assure him that I have a satisfactory answer on that point.

Lord Davies of Oldham: It is worth waiting for.

Lord Hunt of Kings Heath: My Lords, my noble friend says that it is worth waiting for. I do not think that I would put it quite as highly as that. As far as executive devolution is concerned, outside this Bill the Government have agreed in principle to devolve to Scottish Ministers the executive functions in these regulations that relate to offshore waters adjacent to Scotland. Scottish Ministers will become responsible for enforcement of nature conservation under the Bill and the 2007 regulations. The intention is that enforcement officers will have seamless access to the full suite of enforcement powers that they need for enforcing all nature conservation regulations. We are currently in the process of agreeing with the Scottish Executive how the new arrangements will work to ensure continued efficient administration of reserved functions and the protection of UK national interests in these waters.
	Before I come on to the issues raised under the noble Lord's very interesting amendments, I should say that we are looking with great interest at the progress of the Marine (Scotland) Bill. Of course, as the UK Bill continues to go through the UK Parliament, we shall work very hard to ensure compatibility across the two Bills. The noble Lord raised a point in that regard under the last group of amendments. It is entirely relevant to the general discussion that we are having about how we make the devolution settlement work in the marine area.
	The noble Lord's amendments raise two fundamental issues. There is the question, first, of the Scottish Parliament's competence and, secondly, of whether it is desirable to create a new duty to further diversity in the offshore area. As I have said—and as the noble Lord has said—the Scottish Parliament does not have the competence to legislate on biodiversity in the offshore zone. That is why the noble Lord wants to move this amendment in this House. However, we consider that Scottish Ministers have the ability through the various powers that they have under the Bill to achieve the practical effect of the amendments that he is aiming at. He has already quoted what I was going to say; in Clause 121, there is a duty on public bodies, including those in the Scottish offshore area, to further the conservation objectives in marine conservation zones. Those objectives are aimed in part at furthering biodiversity. The noble Lord made a general point about how the objectives relate to only the designated zones, but it is those zones with which we are most particularly concerned.
	What is more, any public authority operating in the Scottish region will have to do so within the terms of the marine plans to be prepared by Scottish Ministers and the marine policy statement, since, under the Bill, we are devolving to Scottish Ministers the responsibility for nature conservation in the Scottish offshore region. They will be able to include in their plans provisions in relation to conservation or furthering biodiversity. In that sense, they will be accountable to the Scottish Parliament for their decisions, which is another point that the noble Lord has made in a number of our debates.
	Scottish marine plans for the offshore region will have to be agreed by the Secretary of State but, having given Scottish Ministers executive responsibility for designating marine conservation zones, we see no reason to object to a plan on the grounds that it contained a duty such as that set out in subsection (1) of Amendment 84B, provided that it was consistent with this Bill and the marine policy statement. I hope that the noble Lord finds that comforting. We believe that Scottish Ministers already have the power under this Bill to include a duty to further biodiversity in marine plans, if they see fit.
	Amendment 84A seeks to insert a duty to further the conservation of biodiversity within the offshore region adjacent to Scotland. The first question is whether that duty is necessary, and we are not convinced that it is. All UK Administrations have emphasised the importance of consistency across the UK, while respecting the rights of each legislature. We have no such separate, explicit duty to further biodiversity in other UK offshore areas and we do not think that it is necessary. We already have a number of provisions in this Bill and in wider European legislation that allow us to further biodiversity conservation in the offshore area. We, and the Scottish Executive, will be able to consider biodiversity out to 200 nautical miles where MCZs have been designated. Furthermore, the statutory nature conservation bodies will be able to give advice relating to biodiversity under the provision set out in Clause 123. Public authorities are required to have regard to such advice, ensuring that biodiversity is effectively considered. As I have suggested already, our marine planning system provides the opportunity to drive the way that decisions are made in the direction of further biodiversity.
	The noble Duke, the Duke of Montrose, raised the question of the birds and habitats directive, matters which are still under discussion with the Scottish Executive. Although they fall outside the Bill, another form of executive devolution is being considered in relation to them. I hope we can have constructive discussions with the Scottish Administration on those matters.

The Duke of Montrose: My Lords, does devolving the EC wild birds directive give the Scottish Parliament any legislative competence in carrying it out, or is it purely executive devolution?

Lord Hunt of Kings Heath: My Lords, it would be executive devolution because we cannot do anything that goes outwith the devolution settlement. However, these are early days and I hope we will have a constructive engagement.
	Some inspiration has reached me on the issue of coal, so I shall test the patience of the House, if I may. Noble Lords will probably know that the Coal Industry Act 1994 regulates coal mining throughout Great Britain. The exclusive right to authorise coal-mining operations, or operations carried out for the purpose of searching and boring for coal in the terrestrial sea and on the UK continental shelf, is vested in the Coal Authority under the Coal Industry Act. Therefore, any coal-mining operation in the UK—except the Northern Ireland inshore region, which has its own legislation—will need authorisation from the Coal Authority under the Coal Industry Act 1994. A marine licence is only needed for the removal of substances from the seabed, not under the seabed. Therefore, mining operations that extract coal using tunnels dug from the shore would not need a marine licence. The noble Duke has been asking for an explanation on this for some time and I hope that we have finally come up with something that is close to satisfactory.

The Duke of Montrose: My Lords, I thank the Minister for bringing that forward but it is a reserved matter.

Lord Hunt of Kings Heath: My Lords, I did not mean to suggest that it is not. However, in the unlikely event of an open-cast operation extracting coal from the surface of the seabed—who knows where technology may take us?—the operation would need a marine licence, and in the Scottish offshore zone, this would be for Scottish Ministers.
	I sympathise with what the noble Lord, Lord Wallace, is trying to do here. We do not think the Bill is the right vehicle for further legislative devolution, but I hope that what I said earlier about the power that Scottish Ministers have under the Bill to include a duty to further biodiversity in marine plans if they see fit will provide him with some reassurance that we can get to where he wishes to be.

Lord Wallace of Tankerness: My Lords, I am grateful to the Minister for his reply and to other noble Lords and the noble Baroness, Lady Carnegy of Lour, who have taken part. The noble Duke, the Duke of Montrose, made a number of important points, not least about the birds and habitats directive. As we heard, there is currently a discussion about trying to make sure that that is extended by way of executive devolution. I rather thought, when the Minister was considering coal, that the idea of tunnelling out to 12 miles plus would challenge, but, as he said, one never knows quite where technology will take us in generations to come.
	The noble Baroness, Lady Carnegy, made the important point that decisions regarding the oil and gas extraction industry are made here and, therefore, the decision regarding biodiversity ought to be made here as well. Indeed, the purpose of one of the alternative amendments I put down was that it would be this Parliament that would legislate for it and it would come under the same legislature.
	I recognise that a settlement has been made with the devolved Administrations. Although I was minded to push this matter further, I was certainly encouraged by what the Minister said in his reply—specifically the point he made in winding up, that if the biodiversity duty set out in these amendments were to be incorporated in a marine plan in relation to marine conservation zones, the Government would look favourably on them. In many respects, that puts the ball into the court of Scottish Ministers. I do not want to underestimate the significance of what the Minister said. It was helpful, and in those circumstances I beg leave to withdraw the amendment.
	Amendment 84A withdrawn.
	Amendment 84B not moved.
	Clause 53 : Delegation of functions relating to marine plans
	Amendment 85
	 Moved by Baroness Hamwee
	85: Clause 53, page 27, line 16, after "body" insert "other than a statutory undertaker"

Baroness Hamwee: My Lords, a government amendment is grouped with this amendment, and I will not attempt to pre-empt that.
	Clause 53 provides for the delegation of functions relating to marine plans. A direction can be given to delegate the functions by a public body. My concern is that a public body as defined in the Bill includes statutory undertakers. Most statutory undertakers are not public: they are private, albeit subject to particular regulation. I query whether it is proper or appropriate to delegate marine plan functions—preparing a plan, identifying the plan area and so forth—to the private sector, even with the Secretary of State's long-stop powers. That is not to say that a marine plan authority should not be working with or consulting statutory undertakers along with other bodies that fall within the normal definition of a public body: of course they should work together. Statutory undertakers will have a role because they have knowledge and views, but to give them the delegation of functions is quite a different matter. Therefore, my amendment would exclude statutory undertakers from the definition of public bodies used in the clause. I beg to move.

Lord Hunt of Kings Heath: My Lords, the noble Baroness's amendment is entirely understandable. I hope to reassure her on this. I agree entirely with her that it is unlikely that it would be appropriate for these functions to be carried out by many statutory undertakers, particularly by the large number which are utility and transport providers. I want to put on record that we are not considering any delegation of marine planning functions to public bodies of that type. The issue that we have is that the definition of statutory undertaker in Clause 312, which points further to that definition given in the relevant terrestrial planning legislation—which the noble Baroness will know better than I do—is wider than simply the utility and transport companies. It includes,
	"persons authorised by any enactment to carry on any ...water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking, or any undertaking for the supply of, or hydraulic power".
	That rather wide definition could include a number of public bodies with functions relevant to marine planning, including the Environment Agency and some harbour authorities. While we are committed to delegating our marine planning functions in relation to the English inshore and offshore regions to the Marine Management Organisation, we should not restrict other plan authorities, whom we have considered in some detail in our earlier discussions, from delegating their marine planning functions to public bodies such as harbour authorities or the Environment Agency which happen to be statutory undertakers. I hope that I have reassured the noble Baroness sufficiently on that.
	I turn to my Amendment 86, which reorganises the drafting of subsections (6) and (7) of this clause. Subsection (6) lists those functions of marine plan authorities which are excepted from the list of delegable functions and so cannot be delegated under this clause. However, many of the functions presently listed in subsection (6) are not, in fact, functions of marine plan authorities, but of the Secretary of State in his own capacity. These functions would not, therefore, be delegable functions to begin with and are more properly listed in subsection (7), along with other non-delegable functions of the Secretary of State. My speaking note says that the amendment is minor and technical and does not affect the powers of marine plan authorities to delegate their planning functions.

Baroness Hamwee: My Lords, I thought I would be tempting providence if I said, in opening, that Amendment 86 looked like a technical drafting amendment. I am full of admiration for the people who must be reading this Bill over and over again looking for matters such as this, to ensure that they are correct. I am reassured as to the Government's intentions; I accept that they will not be the only player in this, by any means. I am reassured by what the Minister had to say on my amendment. I beg leave to withdraw the amendment.
	Amendment 85 withdrawn.
	Amendment 86
	 Moved by Lord Hunt of Kings Heath
	86: Clause 53, page 27, line 27, leave out subsections (6) and (7) and insert—
	"(6) The "excepted functions" are the following functions of a marine plan authority—
	(a) deciding under paragraph 15 of Schedule 6 whether to publish a marine plan or any amendment of a marine plan;
	(b) deciding under section 51 whether to withdraw a marine plan.
	(7) No direction may be given under this section in respect of any of the following functions of the Secretary of State—
	(a) deciding under paragraph 5 of Schedule 6 whether to give agreement to a statement of public participation;
	(b) deciding under paragraph 7 of that Schedule whether to give agreement to a revised statement of public participation;
	(c) deciding under paragraph 11 of that Schedule whether to give agreement to a consultation draft;
	(d) deciding under paragraph 15 of that Schedule whether to give agreement to a marine plan;
	(e) deciding under section 51 whether to withdraw agreement previously given under that paragraph to a marine plan."
	Amendment 86 agreed.
	Clause 56 : Decisions affected by marine policy documents
	Amendments 87 to 90 not moved.
	Amendment 91
	 Moved by Lord Hunt of Kings Heath
	91: Clause 56, page 29, line 20, leave out "relating to" and insert "in relation to"
	Amendment 91 agreed.
	Clause 57 : The appropriate marine policy documents
	Amendments 91A to 91N
	 Moved by Lord Hunt of Kings Heath
	91A: Clause 57, page 30, line 13, at end insert—
	"( ) if a devolved policy authority has adopted the MPS, the devolved policy authority and any primary devolved authority related to it;"
	91B: Clause 57, page 30, line 14, after "any" insert "non-departmental"
	91C: Clause 57, page 30, line 16, after "any" insert "non-departmental"
	91D: Clause 57, page 30, line 18, leave out paragraph (e)
	91E: Clause 57, page 30, line 19, after "any" insert "non-departmental"
	91F: Clause 57, page 30, line 19, after "out" insert "secondary"
	91G: Clause 57, page 30, line 28, leave out subsections (7) and (8)
	91H: Clause 57, page 31, line 3, at end insert—
	""Counsel General" means the Counsel General to the Welsh Assembly Government;"
	91J: Clause 57, page 31, leave out lines 4 and 5
	91K: Clause 57, page 31, line 13, at end insert—
	""First Minister" has the same meaning as in the Government of Wales Act 2006 (c. 32);
	"non-departmental public authority" means any public authority other than—
	(a) a Minister of the Crown or government department;
	(b) the Scottish Ministers;
	(c) the Welsh Ministers, the First Minister or the Counsel General;
	(d) a Northern Ireland Minister or a Northern Ireland department;
	"Northern Ireland Minister"—
	(a) has the same meaning as in the Northern Ireland Act 1998 (c. 47), but
	(b) includes a reference to the First Minister and the deputy First Minister, within the meaning of that Act;"
	91L: Clause 57, page 31, leave out lines 14 to 30
	91M: Clause 57, page 31, line 30, at end insert—
	""primary devolved authority", in relation to a devolved policy authority, means—
	(a) in the case of the Welsh Ministers, the First Minister or the Counsel General;
	(b) in the case of the Department of the Environment in Northern Ireland, a Northern Ireland Minister or a Northern Ireland department;
	"retained functions" is defined for the purposes of this Part in section (Meaning of "retained functions" etc);
	"secondary devolved functions" has the same meaning as in section (Meaning of "retained functions" etc)."
	91N: After Clause 57, insert the following new Clause—
	"Meaning of "retained functions" etc
	(1) For the purposes of this Part, the functions of a public authority which are "retained functions" as respects any marine planning region are those functions of the public authority which, as respects that region, are not any of the following—
	(a) Scottish Ministerial functions (see subsection (2));
	(b) Welsh Ministerial functions (see subsection (2));
	(c) Northern Ireland government functions (see subsection (2));
	(d) secondary devolved functions (see subsection (3));
	(e) relevant ancillary functions (see subsection (5)).
	(2) In this section—
	"Northern Ireland government functions" means—
	(a) any functions exercisable by a Northern Ireland Minister or a Northern Ireland department, other than joint functions and concurrent functions (see subsection (9));
	(b) any concurrent functions, so far as exercised by a Northern Ireland Minister or a Northern Ireland department;
	(c) the function exercised by a Northern Ireland Minister or a Northern Ireland department when exercising a joint function;
	"Scottish Ministerial functions" means—
	(a) any functions exercisable by the Scottish Ministers, other than joint functions and concurrent functions;
	(b) any concurrent functions, so far as exercised by the Scottish Ministers;
	(c) the function exercised by the Scottish Ministers when exercising a joint function;
	"Welsh Ministerial functions" means—
	(a) any functions exercisable by the Welsh Ministers, the First Minister or the Counsel General, other than joint functions and concurrent functions;
	(b) any concurrent functions, so far as exercised by the Welsh Ministers, the First Minister or the Counsel General;
	(c) the function exercised by the Welsh Ministers, the First Minister or the Counsel General when exercising a joint function.
	(3) "Secondary devolved functions" means—
	(a) as respects the Scottish inshore region or the Scottish offshore region, any secondary devolved Scottish functions;
	(b) as respects the Welsh inshore region or the Welsh offshore region, any secondary devolved Welsh functions;
	(c) as respects the Northern Ireland inshore region or the Northern Ireland offshore region, any secondary devolved Northern Ireland functions.
	See subsection (4) for the definition of each of those descriptions of secondary devolved functions.
	(4) In this section—
	"secondary devolved Northern Ireland functions" means any of the following—
	(a) any functions exercisable by a Northern Ireland non-departmental public authority;
	(b) any functions exercisable by any other non-departmental public authority, so far as relating to transferred or reserved matters (within the meaning of the Northern Ireland Act 1998 (c. 47));
	"secondary devolved Scottish functions" means any of the following—
	(a) any functions exercisable by a Scottish non-departmental public authority;
	(b) any functions exercisable by any other non-departmental public authority, so far as not relating to reserved matters (within the meaning of the Scotland Act 1998 (c. 46));
	"secondary devolved Welsh functions" means any of the following—
	(a) any functions exercisable by a Welsh non-departmental public authority;
	(b) any functions conferred or imposed on a non-departmental public authority by or under a Measure or Act of the National Assembly for Wales;
	(c) any functions exercisable by a non-departmental public authority, so far as relating to matters within the legislative competence of the National Assembly for Wales;
	but the definitions in this subsection are subject to subsection (6) (which excludes certain functions in relation to which functions are exercisable by a Minister of the Crown or government department).
	(5) "Relevant ancillary functions" means any functions exercisable by a non-departmental public authority in relation to any of the following—
	(a) a Scottish Ministerial function;
	(b) a Welsh Ministerial function;
	(c) a Northern Ireland government function;
	(d) a secondary devolved function;
	but this subsection is subject to subsection (6).
	(6) Where functions are exercisable by a Minister of the Crown or government department in relation to a function of a non-departmental public authority, the function of the non-departmental public authority is not—
	(a) a secondary devolved Scottish function;
	(b) a secondary devolved Welsh function;
	(c) a secondary devolved Northern Ireland function;
	(d) a relevant ancillary function;
	but this subsection is subject to subsection (7).
	(7) Functions are not to be regarded as exercisable by a Minister of the Crown or government department in relation to functions of a non-departmental public authority merely because—
	(a) the agreement of a Minister of the Crown or government department is required to the exercise of a function of the non-departmental public authority;
	(b) a Minister of the Crown or government department must be consulted by the non-departmental public authority, or by a primary devolved authority, about the exercise of a function of the non-departmental public authority;
	(c) a Minister of the Crown or government department may exercise functions falling within subsection (8) in relation to functions of the non-departmental public authority.
	(8) The functions mentioned in subsection (7)(c) are—
	(a) functions under section 2(2) of the European Communities Act 1972 (c. 68);
	(b) functions by virtue of section 57(1) of the Scotland Act 1998 (c. 46) (Community obligations) or under section 58 of that Act (international obligations);
	(c) functions under section 26 or 27 of the Northern Ireland Act 1998 (c. 47) (international obligations and quotas for international obligations);
	(d) functions by virtue of section 80(3) of, or paragraph 5 of Schedule 3 to, the Government of Wales Act 2006 (c. 32) (Community obligations) or under section 82 of that Act (international obligations etc);
	(e) functions under section 152 of that Act (intervention in case of functions relating to water etc).
	(9) In this section—
	"concurrent function" means a function exercisable concurrently with a Minister of the Crown or government department;
	"Counsel General" means the Counsel General to the Welsh Assembly Government;
	"devolved policy authority" means—
	(a) the Scottish Ministers;
	(b) the Welsh Ministers;
	(c) the Department of the Environment in Northern Ireland;
	"First Minister" has the same meaning as in the Government of Wales Act 2006 (c. 32);
	"joint function" means a function exercisable jointly with a Minister of the Crown or government department;
	"non-departmental public authority" has the same meaning as in section 57;
	"Northern Ireland Minister"—
	(a) has the same meaning as in the Northern Ireland Act 1998 (c. 47), but
	(b) includes a reference to the First Minister and the deputy First Minister, within the meaning of that Act;
	"Northern Ireland non-departmental public authority" means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by a Northern Ireland Minister or a Northern Ireland department;
	"primary devolved authority" means any of the following—
	(a) the Scottish Ministers;
	(b) the Welsh Ministers, the First Minister or the Counsel General;
	(c) a Northern Ireland Minister or a Northern Ireland department;
	"Scottish non-departmental public authority" means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by the Scottish Ministers;
	"Welsh non-departmental public authority" means any non-departmental public authority so far as exercising functions in relation to which functions are exercisable by the Welsh Ministers, the First Minister or the Counsel General."
	Amendments 91A to 91N agreed.
	Clause 58 : Monitoring of, and periodical reporting on, implementation
	Amendments 92 to 97
	 Moved by Lord Hunt of Kings Heath
	92: Clause 58, page 31, line 32, at end insert—
	"( ) This section makes provision for and in connection with imposing the following duties on a marine plan authority—
	(a) where it has prepared and adopted a marine plan, a duty to keep the matters specified in subsection (2) under review for so long as the marine plan is in effect (see subsections (1) and (2));
	(b) in any such case, a duty to prepare and publish, and lay a copy of, a report on those matters at intervals of not more than 3 years (see subsections (3) to (7));
	(c) in any case, a duty to prepare, and lay, at intervals of not more than 6 years ending before 1st January 2030, a report on—
	(i) any marine plans it has prepared and adopted,
	(ii) its intentions for their amendment, and
	(iii) its intentions for the preparation and adoption of any further marine plans,
	(see subsections (8) to (11))."
	93: Clause 58, page 31, line 44, at end insert—
	"( ) Where the marine plan authority publishes a report under subsection (3), the authority must lay a copy of the report before the appropriate legislature."
	94: Clause 58, page 32, line 3, after "report" insert "under subsection (3)"
	95: Clause 58, page 32, line 5, leave out "report, successive reports" and insert "report under subsection (3), successive reports under that subsection"
	96: Clause 58, page 32, line 14, at end insert—
	"(8) Each marine plan authority must from time to time prepare and lay before the appropriate legislature a report which—
	(a) identifies any marine plans which the authority has prepared and adopted;
	(b) describes any intentions the authority may have for the amendment of any marine plans which it has prepared and adopted;
	(c) describes any intentions the authority may have for the preparation and adoption of any further marine plans.
	(9) The first report prepared under subsection (8) by each marine plan authority must be laid before the appropriate legislature before the expiration of the period of 6 years beginning with the date of the passing of this Act.
	(10) After a marine plan authority has prepared and laid its first report under subsection (8), it must prepare and lay successive reports under that subsection at intervals of no more than 6 years following the laying of the previous report.
	(11) No report under subsection (8) is required to be laid in a case where the period of 6 years following the laying of the previous report ends on or after 1st January 2030."
	97: Clause 58, page 32, line 14, at end insert—
	"( ) For the purposes of this section, the "appropriate legislature" is—
	(a) in the case of the Secretary of State, Parliament;
	(b) in the case of the Scottish Ministers, the Scottish Parliament;
	(c) in the case of the Welsh Ministers, the National Assembly for Wales;
	(d) in the case of the Department of the Environment in Northern Ireland, the Northern Ireland Assembly."
	Amendments 92 to 97 agreed.
	Clause 59 : Validity of marine policy statements and marine plans
	Amendment 98
	 Moved by Lord Wallace of Tankerness
	98: Clause 59, page 32, line 38, at end insert—
	"( ) the Court of Session, if the relevant document is a marine plan or an amendment of a marine plan for an area within the Scottish offshore plan;"

Lord Wallace of Tankerness: My Lords, I do not wish to detain the House long on this. I wish to pursue again with the Minister a point which I raised in Committee which relates to the courts' jurisdiction if a person should wish to challenge relevant documents in relation to the Scottish offshore region. As the Bill stands, it would be possible to raise an action in either the Court of Session or the High Court. I cannot understand, and I am not aware of a precedent, why a matter relating exclusively to Scottish waters—almost certainly an action where the respondent would be Scottish Ministers—would find its way to the High Court when the Court of Session is perfectly competent, both legally and actually, to deal with the matter.
	I remember when this was dealt with before; the Minister seemed to indicate that it was part of the general overall agreement with Scottish Ministers as to how the Bill would proceed. It struck me as very interesting that Ministers from the Scottish National Party should concede the jurisdiction of the Court of Session to the High Court. We perhaps need a slightly more detailed explanation than that one, which stretches credibility. Nevertheless, stranger things have happened.
	If a matter relates exclusively to the Scottish offshore region, where the respondents, almost inevitably, would be Scottish Ministers, I cannot see how the High Court could in any way be an appropriate court for that to be heard. By all means, if the matter relates to the English inshore or offshore region, the High Court seems the obvious place. Indeed, if I understand the Bill, such a matter could end up in the Court of Session, which seems to me to be as perverse in the opposite direction.
	It is quite a simple point, but an important one. Through 300 years since the Act of Union, we have jealously guarded our distinctive legal system and we do not, even by some means not intended for that purpose, want to see it eroded. I beg to move.

The Duke of Montrose: My Lords, I am grateful to the noble Lord, Lord Wallace, for moving this amendment. We are all anxious that the legislation should be proper for the devolved powers under the Bill and this reflects some of the worries of the Law Society of Scotland. I wonder again whether this part of the Bill applies to Scotland—whether Scotland has to be included. It would appear that the Government's view has been that the phrase,
	"any superior court in the United Kingdom"
	should be sufficient. The other side of the coin is whether there are courts in Wales or Northern Ireland that would serve in this context. I am very interested to hear the Minister's reply.

Lord Hunt of Kings Heath: My Lords, I am sorry that the noble Lord, Lord Wallace, thinks that I was stretching credulity when we discussed this in Committee. I am ever-hopeful about our relations with the Scottish Parliament and Executive, but let me try again to respond to what is clearly a very interesting amendment. It looks reasonable, but I have taken further advice since Committee, and the amendment has serious implications that might set a legal precedent, which is enough to get my advisers worried. We are not aware of any precedent in post-devolution legislation which limits the possibility of raising an action against Scottish Ministers in the Court of Session. Even the Scotland Act and the Human Rights Act do not contain such a provision and leave the question open to the normal rules of jurisdiction. The noble Lord will understand that we do not want to take a different approach, in principle, in the Bill.
	Clause 59(6)(a) relates only to the English inshore and the Welsh inshore region. There is a mirror provision in the Marine (Scotland) Bill for the Scottish inshore region. As regards Clause 59(6)(b), its sole purpose is to provide that challenges relating to decisions about the offshore regions are brought in superior courts. Which superior court it is brought in will be determined by the normal rules of jurisdiction. In other words, an applicant can go to any court that comes within the description of a superior court and the court itself can decide whether it has jurisdiction or not. The Bill does not require matters to be referred to the High Court; there is no preference for the English or Welsh system over the Scottish courts. In practice, most, if not all actions that may be raised against a marine plan or the amendment of a marine plan, for an area within the Scottish offshore region, will be heard in the Court of Session. However, UK businesses operating in UK waters offshore from Scotland should, we believe, have the right to bring a case in the High Court if they consider that to be the most appropriate court.
	As the clause is drafted, it is left to the courts to determine where it is most appropriate for an application to be heard. I understand that that follows the normal rules of jurisdiction. Our expectation is that cases related to plans in the Scottish offshore region will go to the Court of Session and it is most likely that the High Court would decline jurisdiction over purely Scottish cases. Cases involving both UK and Scottish Ministers may be more complicated, because they relate to the Secretary of State's actions in agreeing to the plan in the Scottish offshore region, but there is nothing in the Bill to prevent those cases being heard in the Court of Session and no court is set out as more important than another. The courts themselves will be able to decide each application on its merits and, of course, Ministers could apply to a court to decline jurisdiction if they considered the decision inappropriate. Put simply, it is better that cases are determined on a pragmatic case-by-case basis than by reference to rigid rules. However, our major concern is using this Bill to depart from current practice and precedent.

Lord Wallace of Tankerness: My Lords, I am grateful for that explanation, which is slightly fuller than the one we got in Committee. I am still not sure what the precedents are for cases which involve Scottish Ministers and Acts relating to Scotland, either territorially or at sea, being heard in the High Court. However, I take the Minister's point that there could be circumstances in which the Secretary of State might be involved, and the action could involve other marine plans, where there might be some sense in bringing them all together in one court.
	I will carefully consider what the Minister has said. It is not an issue that I want to push at the moment, but we must always be rather careful. I think that it is probably a precedent in one direction, and he sees it as a precedent in another. However, that is probably sufficient for us to go back and look at this again. I beg leave to withdraw the amendment.
	Amendment 98 withdrawn.
	Amendment 99 not moved.
	Amendment 99A
	 Moved by Lord Hunt of Kings Heath
	99A: Clause 61, page 34, line 19, leave out "57" and insert "(Meaning of "retained functions" etc)"
	Amendment 99A agreed.
	Clause 65 : Notice of Applications
	Amendment 99B
	 Moved by Lord Greaves
	99B: Clause 65, page 37, line 10, at end insert—
	"(2A) In subsection (2) "persons likely to be interested" includes each principal local authority whose area includes or is adjacent to a location or an area or part of an area that is the subject of the application."

Lord Greaves: My Lords, we are now leaving Part 3, on planning, and moving on to Part 4, on licensing, so we are making some progress on the Bill. I pay tribute and give my thanks to my noble friend Lady Hamwee for the tremendous work she did, with her great expertise in terrestrial planning, on the planning parts of the Bill. It has been a great help to me and to our party and I believe that it has helped the House. The Government's positive response on planning issues and some of the government amendments has also been very helpful indeed. I thank them for that.
	We move on to licensing. The purpose of this amendment is specifically to insert principal local authorities as consultees on marine licensing applications. In Committee I moved a rather complex amendment setting out what principal local authorities were and so on. We all know what they are; they are county councils, district and borough councils and unitary authorities. The Government said in Committee that they did not want lists to appear in this part of the Bill. I have specifically tabled this amendment so that it is not a list but a specific reference to local authorities. In a moment I shall explain why it should be in the Bill.
	This amendment is not as wide as the amendments I moved in Committee, which concerned a general duty to consult local authorities about everything. The Government not unreasonably said that that was too wide and that specific local authorities that were specifically relevant to particular applications would obviously be consulted. The amendment would apply to relevant applications in the area of a local authority or adjacent to it.
	We return to the relationship of the MMO and the new marine regulatory system with territorial decision-makers, with coastal communities—which we discussed in some detail last time—and, particularly, with local authorities. It has been said that we do not want to put any further administrative burdens on the MMO. I do not believe that we are doing that at all by putting local authorities on the face of the Bill if the Government are saying that the relevant authorities will get consulted in practice anyhow. I suspect that that is what the Minister is about to tell me. The marine licensing functions include planning functions and a range of other functions that could impact on what I would call local authority interests—the decision-making processes of local authorities representing their local communities.
	I had another look at this interesting document called A Strategy for Promoting an Integrated Approach to the Management of Coastal Areas in England, which we received some time ago, just to see what the involvement of local authorities is within that strategy. I have to say that I was disappointed. Under "Marine Licensing" there is a little flow chart, a simple one that I can understand, with "Licensing decisions" in the middle. The feed-in to that is "Marine Policy Statement", "National Policy Statements"—which I find slightly interesting but will not pursue now—"Marine Plan" and "Stakeholders", which has now forced me to say that word. I assume that local authorities are simply included among the stakeholders. I think that that is very unsatisfactory. As for marine licensing, as far as I can see, there is no other specific reference in this document to "local authorities", which seems to be a mistake.
	On page 25 of the document there is an interesting panel setting out what it calls a "desk study" to explore the practical implications of proposals for marine planning licensing and the Marine Management Organisation in coastal areas. The word "licensing" does not appear here but the word "planning" appears several times. It says:
	"A number of key messages emerged from both case studies"—
	there was one in the Thames estuary and one in south-west England, or relating to those places—
	"including stakeholder engagement across all levels from as early as possible was very important".
	Fair enough. One assumes that local authorities might be included there. The third bullet point says that,
	"participants believed that marine planning would improve integration between decision-making bodies on land and at sea, and could provide coastal decision makers with the certainty they needed to make more informed decisions".
	In a further flow chart it defines local authorities as being decision-makers—so there is something there. Then, it says that,
	"the planning process should be set out clearly, be transparent and democratically accountable".
	I am not quite sure what "democratically accountable" means for the marine environment and the issuing of marine licences, including those on planning matters, unless it includes the democratic representatives of the coastal areas; in other words, the principal local authorities.
	On page 26, we have an astonishingly complicated flow diagram which I have great difficulty understanding. I could not work out whether it reminded me of one of those integrated circuit boards that I never understood or whether it is a complicated version of the tube map. It has 23 different types of organisations, statements or whatever in it, with arrows going in all sorts of directions. It includes one blob labelled "Local authority", with an asterisk on it saying that this "indicates decision-making organisation". However, the local authority and the local strategic partnership and one or two things connected with it seem to be in a little whirlpool—or perhaps it is an eddy—at the bottom of the chart, and not really related to its main functions. "Coastal stakeholders" all appear completely isolated at the bottom and only relate to the marine policy statement and plan and national policy statements. I do not quite understand how that works.
	The impression I get from looking at that is that local authorities are not regarded as the very special and rather different bodies which I believe that they are. They are special and different for two reasons. First, they have a lot of statutory responsibilities which interact and overlap with those of the Marine Management Organisation. That is particularly the case in the inshore areas, especially along the foreshore and the coast itself. They include fairly obvious ones such as planning, plan-making, development control; economic development functions, which are ever more important among local authorities; highways and transport, tourism and recreation functions, which are crucial on the coast; and environmental responsibilities whether environmental health, food hygiene or litter, and other such amenity issues. There are other responsibilities which noble Lords will readily bring to mind. As they have these important statutory responsibilities which will be affected by the MMO's decisions, the Bill should state that local authorities are at the very least statutory consultees.
	The second reason why local authorities are different is that they are democratically elected bodies representing the people who live along the coast. For that reason alone they ought to be set aside as something different from all the other consultees. It seems fairly clear to me that acceptable wording could be arrived at to do what I am asking to do. I ask the Government, at this late stage of the Bill in this House, nevertheless to consider this again. I beg to move.

Lord Taylor of Holbeach: My Lords, I support this amendment in its general objectives. It follows one moved in Committee by the noble Baroness, Lady Hamwee. In a subsequent debate we probed the degree to which local authorities were to be consulted on licence applications, and the noble Lord, Lord Greaves, has done so again today. Indeed, we believe that local authorities' participation in decision-making is highly desirable. I recollect that I came away from the previous debate assured by the Minister that this would be part of the procedure. I hope he can give us that assurance today.

Lord Davies of Oldham: My Lords, I was already quailing in front of the noble Lord, Lord Greaves, in his assertions on this amendment, which we did discuss in Committee. Obviously I did not give him sufficient assurances then. As he has now been joined by the noble Lord, Lord Taylor, I can feel the pressure of force majeure.
	Clause 65 places on the licensing authority an obligation to publish, or require the applicant to publish, an application for a marine licence in a manner that is,
	"best calculated to bring the application to the attention of any persons likely to be interested in it".
	It is the Government's view that that would in all circumstances encompass local authorities whose areas are likely to be affected by the application without a specific reference in the Bill to do so. Other legislation uses exactly that phrase without further qualifying it in the way that the amendment seeks to do.
	We think that that is the right approach and that is why we resisted the amendment in Committee. However, I have listened to the strength of feeling expressed by the two noble Lords who have spoken today and it is clear that the assurances we gave in Committee are not sufficient. Therefore, we will look further at this issue between now and Third Reading. On that basis, I hope that the noble Lord will think that he has pressed the Government far enough today.

Lord Greaves: My Lords, I was looking forward to a bit of exercise but the Minister has just persuaded me that we should not have it. I congratulate him on that and thank him for it. If the Government were to look at terrestrial legislation they would see that under planning legislation it is very often written down that appropriate planning authorities, for example, need to be consulted on planning applications. Indeed, parish councils have a right to be consulted on such applications. In the whole of the plan-making process there is a complex system of formal consultation which is set out in the legislation. I accept that we are talking about licences, but I suspect that if we looked at licensing legislation as well we might find that the same things applied. I am not an expert on that, but certainly planning legislation on planning applications, for example, clearly sets out that local authorities are statutory consultees if they are not the authority to which the application has been made. However, I heard what the Minister said and I thank him for it. I hope he can find a way of putting it in the Bill at Third Reading. As I say, local authorities are different in kind from all the other authorities that exist, because they are the democratically elected representatives of the local people. On that basis, I beg leave to withdraw the amendment.
	Amendment 99B withdrawn.
	Clause 71 : Exemptions specified by order
	Amendment 100
	 Moved by Lord Taylor of Holbeach
	100: Clause 71, page 41, line 17, at end insert—
	"( ) The appropriate licensing authority for an area may only issue an order under subsection (1) where that order does not compromise the requirements under section 66."

Lord Taylor of Holbeach: My Lords, I have tabled Amendment 100 in order to draw the Minister out a little further on something he said in Committee. Indeed, one hopes it will meet with similar success. He gave the impression that the power to make an exemption under Clause 71 was subject to the criteria under Clause 66; the appropriate authority has to have regard to protecting the environment and so on.
	I would welcome a little more clarification on how that is to happen. The two chapters appear to have been drafted completely separately with no obvious crossover. Obviously, we would want to be certain that no exemptions are granted that would have a significant environmental impact. Clause 71 seems to give authorities the power to exempt a damaging activity on the quiet in the hope of avoiding having to register it and admit to the damage they had permitted.
	Amendments 101 and 107 relate to the noting of exempted licences on the register. I understand that the Government are consulting on the matter, and quite rightly. They are concerned that planning a burden of registering activities that are exempted precisely because they are harmless and very small scale could place a disproportionate burden on some very small businesses.
	While we would certainly not want to increase the regulatory burden and are very pleased at the harmonisation that is happening in the Bill, if exemptions are used irresponsibly by the appropriate authority, the register could end up with some very worrying holes.
	Will there be any sort of assessment by the authority as to whether it would be wise to include an exempted activity on the register? It is not just the possibility of exempting environmentally damaging activities, which I covered in talking to my first amendment, it is also the possibility of exempting activities which would have an impact on another activity where it would be wise to keep tabs on what is happening in the environment.
	I would welcome any reassurances the Minister can give us that exemptions will be used wisely and that there will be some check on their abuse. I beg to move.

Lord Greenway: My Lords, the noble Lord, Lord Taylor, did mention the drawbacks concerned with some minor activities and I would like to reinforce that point.
	I think his amendments are too widely drawn in many ways. There are day-to-day activities that go on. For instance, Trinity House might need to lay buoys or ships might need to anchor and other things like that. They should not have to be put on to a register every time they happen.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord for raising these issues again.
	On Amendment 100, we certainly agree that it is important that in the use of the exemption-making power under Clause 71 the licensing authority must adhere to the requirements outlined in Clause 66. They are factors that should be taken into account when determining what activities are appropriate to provide an exemption for, and whether that exemption is a blanket exemption or is to be given conditionally. It is reasonable to expect the licensing authorities to use the same fundamental principles that will be used to determine the impact of individual licence applications when making decisions on what activities are appropriate to be carried out without the need for a licence. We do not believe that there is a problem in relation to the Bill, but I have listened to the noble Lord and am prepared to give this matter further consideration. If I believe that we need to make a change, I will bring back an amendment at Third Reading to deal with the issue that the noble Lord has raised.
	So far as concerns Amendments 101 and 107, I hope that I can give reassurance in the way that the noble Lord has suggested. Placing exempted activities on the licensing register where appropriate provides transparency for those operating in the marine environment and allows each licensing authority to take into account the potential cumulative effects of both exempt and licensed activities undertaken in its area. We would expect many exempted activities to be registered in this way, and we have provided a clear mechanism in the Bill for that to happen.
	As I said in Committee, our concern is that a blanket requirement in the Bill would mean that some extremely minor, low-risk activities which would be exempted by order and would have a negligible impact on the marine environment would have to be listed. Examples of the kinds of activities that might fall into this category are already listed in the Food and Environment Protection Act 1985 (FEPA) exemptions order and the Deposits in the Sea (Exemptions) Order 1985. I think that it is a question of proportionality. Would it be proportionate for those launching a vessel, dropping an anchor in port or, as the noble Lord, Lord Greenway, suggested, depositing a buoy around a hazard to be under a statutory duty to notify the licensing authority each time that they carried out such an activity? We would be concerned about significant and unnecessary additional burdens being placed on many industries, not least the fishing and shipping industries. Our approach to using the exemption orders will achieve the same aims that the amendments are striving for—the ability to monitor cumulative impacts and ensure protection of the environment—but without the unnecessary additional burdens on already challenged industries.
	The public consultation on the exemptions order that we are soon to launch will canvass public views on whether each activity that we propose to exempt should be required to be notified to the licensing authority and then be placed on the licensing register. We would prefer to leave some discretion until we have seen the outcome of that public consultation. However, I reassure the noble Lord that our clear intent is to ensure that we can monitor activities which may have a cumulative impact on the environment.
	The noble Lord asked whether the exemptions would be used in an inappropriate way, but of course that is not our intention. I hope that I have been able to give him the reassurance that he requires.

Lord Taylor of Holbeach: My Lords, I thank the Minister for that response and particularly for his very positive reply on Amendment 100. I hope that it will be possible to tie in the two principal clauses to make the matter clearer and indeed to make the Government's intention clear in the Bill.
	I understand the Minister's argument regarding exemptions. Indeed, the noble Lord, Lord Greenway, reinforced the need to avoid pettifogging, bureaucratic processes. However, somehow or another, we need to find a way of ensuring that repeated activity can be properly monitored so that environmental damage can be noted. If that is the purpose of the consultation, we are very happy, and I beg leave to withdraw the amendment.
	Amendment 100 withdrawn.
	Amendment 101 not moved.
	Clause 73 : Dredging in the Scottish zone
	Amendment 102
	 Moved by Lord Davies of Oldham
	102: Clause 73, page 42, line 16, leave out from "by" to end of line 17 and insert "the Scottish Ministers"

Lord Davies of Oldham: My Lords, Amendment 102, together with the majority of the amendments in this group, is largely technical, and the two amendments of substance are Amendments 108 and 103B.
	Amendment 108 has been tabled in response to the eloquent case made in Committee by the noble Lord, Lord Tyler. I was going to lavish great praise on him from this Dispatch Box today but, as he has withdrawn to other pursuits, he will have to be content with the fact that the Government are responding to the case that he made. I have no doubt that the noble Lord, Lord Greaves, will carry back the good news as though it came from Ghent to Aix.
	In Committee, the noble Lord, Lord Tyler, sought to change the test that the licensing authority would apply when deciding whether information pertaining to a licence application should be withheld from the licensing register. The wording suggested by the noble Lord was that used in the Environmental Information Regulations 2004, which he commended to the Committee. It would have provided that the disclosure of information could be withheld from the register only to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality was provided by law to protect a legitimate economic interest.
	We revisited the wording used in Clause 98(5)(b) and, in the light of the arguments presented by the noble Lord, Lord Tyler, I have now tabled Amendment 108. This amendment would replace the test currently in the Bill with wording equivalent to that in the Environmental Information Regulations 2004, which the noble Lord brought to our attention.
	Amendment 103B—the other substantive amendment in this group—removes the requirement that appeals against monetary penalties issued by Scottish Ministers in relation to licensing breaches in the Scottish offshore region must be directed to either the First-tier Tribunal or another tribunal. This change is being made at the request of the Scottish Executive and will enable determination of what is considered to be the appropriate appellate body. I am sure that the House will see the advantage of complying with the Scottish Executive's request in these terms.
	As I said, the other amendments in this group are all minor and technical. Accordingly, I beg to move.

Lord Greaves: My Lords, on the second of the amendments that refer to Scottish matters, I think that I have just been given the nod by my noble friend Lord Wallace of Tankerness that it is okay and that we can let it through. On the first amendment, concerning confidentiality, I thank the Minister for looking at this matter again and for effectively doing what my noble friend Lord Tyler asked him to do. It is sensible and much clearer, and I think that it is better legislation.
	Last week, I called in on the Grand Committee of the Political Parties and Elections Bill to keep an eye on my noble friend Lord Tyler, and I can say that he is doing sterling work. If the Government respond to his work there in the way that they have done here, then two Bills will be substantially improved. For the moment, I thank the Minister.

The Duke of Montrose: My Lords, from this Dispatch Box, I thank the Minister for explaining the very varied amendments in this group. They indicate the complexities of drafting legislation dealing with devolution, and I am very glad that the Minister's officials have caught the inconsistencies in the Bill and dealt with the necessary requirements.
	Amendment 102 concerns dredging in the North Sea and, if I am not mistaken, we have now found the slot in which the Minister was going to bring forward something about coal. However, I am still slightly puzzled. Considering that in Section D3 under Schedule 5 to the Scotland Act, headed "Coal", deep and opencast coal mining and coal mining subsidence are reserved matters, why would opencast mining under the sea be a devolved matter, as stated earlier by the Minister? If that is true, when was this power devolved?

Lord Davies of Oldham: My Lords, the position is that if the opencast operation extracting coal from the surface of the seabed is taken out, it will need a marine licence. The authority to issue the marine licence in this inshore position is the Scottish authority. That is why we have the arrangements the way we have.
	Amendment 102 agreed.
	Clause 78: Submarine cables on the continental shelf
	Amendment 102A
	 Moved by The Duke of Montrose
	102A: Clause 78, page 47, line 6, leave out "must" and insert "may"

The Duke of Montrose: My Lords, I move this amendment on behalf of my noble friend Lord Taylor of Holbeach. Clause 78 takes us into a strange field. It says that "nothing in this Part"—which I take to mean the section on the permitting or granting of licences—
	"applies to anything done in the course of laying or maintaining an offshore ... cable",
	and that the,
	"authority must grant any application"
	once it comes inshore. What is the position currently if the Scottish Government exercise their power to place a wind farm or a wave generator in the offshore area and then want to lay a cable to the shore? Surely, at the moment, there are powers that allow that to happen.
	The Minister will be aware that power over interconnectors was devolved to Scotland a little while ago. Does the definition of an interconnector not extend to the Scottish offshore area? How will this measure interact with that provision? The current wording of subsection (2) states that the authority,
	"must grant any application ... for the carrying on of a licensable marine activity".
	At this stage none of us can know what might be argued as falling within that description. The inshore area is likely to be an area with great sensitivity to disruption or degradation. Possible routes for the cable might be various within the area, or they might be better in a neighbouring area. So the phrase "must grant" is too rigid a power to place in the hands of what will really be the developer, let alone anyone else. I would be glad to hear the Minister defend this term.

Lord Hunt of Kings Heath: My Lords, I hope I can reassure the noble Duke on this matter, although I readily agree with him that it is complex. It has to be read alongside the United Nations Convention on the Law of the Sea, which I think adds to the complexity of the general issue.
	A coastal state's ability to regulate submarine cables is tightly defined by the UN Convention on the Law of the Sea. Articles 58, 77 and 79 of UNCLOS, as it is popularly known, do not permit a coastal state to delineate the route of cables or regulate operations associated with the freedom to lay or maintain cables, on the continental shelf or in an exclusive economic zone, that are not involved in the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure.
	This means that there are four scenarios for which we have to cater. First, the rights given to the laying and maintaining of submarine cables under UNCLOS do not extend, as I said, to those cables that are involved in the exploration or exploitation of natural resources, or those connected to an artificial island, installation or other structure. To answer the noble Duke's question, these cables—such as those running to or from offshore wind farms—will require a marine licence, just like any other marine licensable activity, from the appropriate licensing authority as defined in Clause 110. This is regardless of whether they are in the territorial sea or the continental shelf.
	The second scenario is that the rights given under UNCLOS do not extend to any cable that is entirely within the territorial sea. Again, these cables will require a marine licence from the appropriate authority as defined in Clause 110.
	The third is that activities relating to the laying and maintaining of cables that are not connected with the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure, no part of which is in the territorial sea, are fully protected under UNCLOS and are therefore not licensable at all by coastal states. They tend to be telecommunications cables.
	The fourth scenario is activities relating to the laying and maintaining of those cables that are not connected with the exploration or exploitation of natural resources, or connected to an artificial island, installation or other structure, but parts of which are in the territorial sea. These sets of cables are covered by the amendment to which the noble Duke has just spoken. Under UNCLOS, a coastal state cannot apply any regulatory control over that part of these cables that lies outside of the territorial sea.
	For that part of these cables that lies inside the territorial sea, the coastal state can apply conditions to the laying of the cable for environmental protection reasons, but it cannot prevent the laying of that cable or regulate the maintenance of those cables. It is because of this restriction that Clause 78(2)(a) states that the licensing authority,
	"must grant any application made to it",
	in respect of this part of those cables. Accepting the noble Duke's amendment would put us in breach of our obligations under the UN convention.
	Electricity transmission cables will need a marine licence from the appropriate marine licensing authority, unless they are considered ancillary to a nationally significant infrastructure project. In that case, development consent from the IPC covering the main project will also cover the ancillary transmission cables and deem a marine licence to be granted if the development is in English territorial waters or offshore waters adjacent to England or Wales.
	I hope that that is a full explanation. If the noble Duke wishes to consider it between now and Third Reading I would entirely understand, because of the complexity. We think that we have got it right in relation to the requirements under the UN convention.

The Duke of Montrose: My Lords, I am most grateful to the Minister for taking the trouble to give us a really extensive lesson in the whole question of undersea cables and all the ins and outs. It is interesting that the provision saying "must" is covered by various caveats under the United Nations law of the sea. I shall read very carefully what he had to say, and I beg leave to withdraw the amendment.
	Amendment 102A withdrawn.
	Clause 88: Remediation notice
	Amendment 102B
	 Moved by Lord Hunt of Kings Heath
	102B: Clause 88, page 52, line 31, after "remedial" insert "or compensatory"

Lord Hunt of Kings Heath: My Lords, in moving Amendment 102B I shall speak also to the amendments grouped with it. When we debated Clauses 88 and 103 in Committee, there was concern that the clause as drafted would not enable the environment to be restored to the condition it had been in before the harm or interference had been caused. If this interpretation were correct, it would mean that the clauses would not achieve the intention that we had agreed was appropriate, which was that people should be made to put right the harms that they have caused. I agreed to look at these clauses and have tabled these amendments to ensure that harm or interference can be properly addressed.
	Clause 88 enables the enforcement authority to issue a remediation notice to make someone remediate the harm they have caused where they have carried out a licensable activity and that activity has involved the commission of an offence under Clause 82(1). Perhaps the person breached the conditions of their licence and so damaged the environment, or perhaps they did not have a licence at all when they should have had.
	Clause 103 gives the licensing authority power to take remedial action. It enables the authority to carry out any works, whether these are to protect the environment or human health, or to prevent interference with legitimate uses of the sea, where a licensable activity has been undertaken without a licence. This power already exists under Schedule 10 of the Food and Environment Protection Act.
	My amendments amend Clause 88 to allow restoration of the environment under a remediation notice as well as providing for compensatory steps elsewhere if remediation at the site of harm itself is not reasonably practical. In my aims on enforcement under the Bill, I have been clear that enforcement action should be proportionate to the offence. Remediation notices should be proportionate to the scale of the harm to the environment, human health or interference to other legitimate uses of the sea. Financial gain by an offence should not be targeted by use of a remediation notice—other provisions under this part, such as variable monetary penalties, allow such gain to be addressed.
	In some cases, the costs of restoration to the condition the environment was in prior to the harm or interference, even if technically possible, may be disproportionate to the benefits to be achieved. The ability to order remedial steps not directly connected to the harm itself reduces the likelihood of remediation notices being successfully challenged, on the basis that they are unreasonable according to all the circumstances of the case.
	I have also tabled Amendments 108A and 108B to Clause 103. This clause uses the same sort of wording as in Clause 88 and suffers from a similar risk of being interpreted in a narrow sense—that the authority may only carry out works to protect what is left of the site, if anything, after the harm has been caused, rather than allowing it to put right the damage, or to prevent further harm, as intended.
	In addition to being able to take steps to protect what is left of the site of damage, I want authorities to be able to carry out remedial works for the purpose of preventing or minimising, or remedying or mitigating, the effects of harm to the environment or human health, or interference with legitimate uses of the sea. Clearly, the ability to prevent further harm is a desirable objective, which, while it is unlikely to have frequent application, would be a noticeable gap in our provisions if we did not seek to plug it.
	The power to take protective or preventive works may be needed at the site of damage or elsewhere, such as in an area to where contaminated material has been transported. However, I have not extended the power to take compensatory steps away from damaged sites. We anticipate that the enforcement authority will need to use the power under Clause 103 instead of Clause 88 only where there is a particular need to do so; for example, where the offender cannot be readily identified. The extended nature of Clause 88 as amended is not needed for Clause 103, since we would expect the enforcement authority to use Clause 103 to take positive steps to address the harm caused, rather than to seek to compensate for it.
	I hope that noble Lords will accept that we have listened carefully to the debate in Committee and that my amendment meets the main points and concerns that were raised. I beg to move.

Lord Kingsland: My Lords, I have tabled Amendment 103 in this group. Its purpose at the time I tabled it was to add the expression "or restoring" to Clause 88(9)(a). I am delighted to say that the Government have, as the Minister explained, tabled their own Amendment 103A which, except with one hesitation that I shall express in a moment, seems to cover the problem I had identified entirely. I am extremely grateful to the Minister for once again meeting our concern.
	My hesitation may be dispelled immediately by the Minister if he gives the reply that I hope he will. In his Amendment 103A, he uses the expression, at the beginning of the relevant paragraph,
	"restoring (whether in whole or in part) the condition of any place affected by that harm or interference to the condition, or a condition reasonably similar to the condition, in which the place would have been had the harm or interference not occurred".
	My question is this. What do the words "whether in whole or in part" mean? Do they mean, as I hope the Minister will say, that if part of the relevant location in the ocean—and only part of it—is damaged, then, plainly, only part of it needs to be restored? If that is what the amendment means, I am entirely content. If, however, it might be said to mean that the obligation to restore might be reduced, because of some set of circumstances, to only a partial restoration, then the Minister's amendment does not do what I would have thought would have been appropriate.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord, Lord Kingsland. I entirely understand why he has raised that point with me. We would usually want the enforcement authority to be able to require steps aimed towards restoring the site of damage to the state it was in before the harm occurred. This might consist of measures such as the dredging or capping of unlicensed deposits.
	One has to accept that taking such active steps to restore a condition at sea might not be possible; or it might cause further damage in taking the steps to do so; or it might be expensive relative to the gain achieved; or it might be a case where the best course of action is to rely on natural recovery rather than active steps for primary remediation. However, if the harm is such that the site itself cannot or should not be restored, should that mean that an offender cannot be made to make some redress for the harm they have caused? We do not think that that is right, which is why my amendments allow for remedial steps to be ordered at a place other than where the harm occurred.
	In effect, these are steps taken at one place to compensate for damage caused in another. Such steps might be the installation of artificial reefs to make recompense for the damage to the seabed; or the case might be such that the authority wants the offender to make recompense the other way. I do not know whether that reassures the noble Lord, but the aim is to have a practical approach, starting from the premise that we want steps taken to restore the site of damage to the state it was in before the harm occurred. But there might be some circumstances where that is not entirely appropriate, and I aim to give those. That is why my amendment is worded as it is.
	We have to develop enforcement guidance which will provide greater clarity for operators and allow for what, after all, is a developing area to be incorporated into practice. If the noble Lord, Lord Kingsland, is not satisfied, I would have to say to him that I believe that there is some room for a degree of flexibility here.

Baroness Byford: My Lords, before my noble friend comes back, might I clarify whether the Minister's amendments are saying, in other words, that if you cannot restore the site to its former state then some other action or area of the sea within that sort of area might be given as compensation for the damage done? I was not absolutely sure, because using "compensatory" suggests that if something is not perfect then it is nearly quid pro quo—that you give something else where it cannot be renewed as it formerly was. I do not think that is quite what my noble friend was after.

Baroness Carnegy of Lour: My Lords, with the leave of the House and also before the Minister comes back, I ask whether the amendment should not say what he has said to my noble friend Lord Kingsland. At the moment, it could be read as simply restoring in part the condition of any place, in which case people could get away with murder. I do not know what my noble friend will say, but I would have thought that the amendment should actually say what the Minister has said.

Lord Greaves: My Lords, I hesitate to try and bring the Minister to order, but we are on Report and we risk descending into a Committee sitting if we are not careful. I wonder if it would help if we all say what we want to, ask our questions and the Minister then replies. In no way do I suggest that the questions asked, for example by the noble Baroness, have not been extremely helpful. I want to briefly welcome this group of amendments on behalf of the Liberal Democrats—

Lord Hunt of Kings Heath: My Lords, I moved my group of amendments; the noble Lord, Lord Kingsland, then moved his own amendment. I have replied to his amendment, and I think that we are at the point where the noble Lord, Lord Kingsland—

Baroness Hayman: My Lords, perhaps I can assist the House. The amendment from the noble Lord, Lord Kingsland, is grouped with the amendment that the Minister has moved, so we are discussing it. The noble Lord, Lord Kingsland, quite correctly spoke to his own amendment. It will be for the Minister to reply, when he winds up on his amendment, to the discussion that has been included on an amendment within this group. It will then be for the noble Lord, Lord Kingsland, to decide whether he wishes to move that amendment in its place on the Marshalled List.

Lord Greaves: My Lords, I was about to blush that I had it completely wrong just then, but I am very grateful to hear from the Lord Speaker that I was right—for once. We are grateful that the Government have looked again at the whole question of remediation, and for the briefing that they sent us. In an interesting discussion of this in Committee, two different considerations were put forward that, in a sense, pulled in opposite directions. One was that the Bill was too prescriptive and needed more flexibility, which is the compensation point; on the other hand, it was suggested that the Bill did not clearly set out the powers to do what is sensible in a particular situation. Quite clearly, there will be situations where complete restoration is the right thing to do, situations—quite small-scale, perhaps—where compensation is the sensible thing, and other circumstances where prevention is required. In many cases, if it is a large and complex site, there might be a mixture of those; the ability to carry out work on a different part of the seabed, as opposed to the ruined part, is also valuable.
	The problem, of course, is that that will all depend on what happens in practice and the decisions being made. The enforcing authorities may, in future, be too stringent—probably not, in the view of some of us, yet other people might think that—but in other cases they may let people off lightly. All that we can do is to put forward sensible legislation for a framework that allows what is sensible to take place, then hope that the enforcing authorities do the right thing in each case. There is no way that we can tie up in legislation every situation that will occur; we have to set the framework and urge that what is right is carried out.
	My specific question is: although it is not set out in the legislation, will the Government think of giving some kind of guidance to the enforcing authorities, particularly the MMO, on how to carry out that work? It is very important that this is done effectively and quite rigorously, right from the beginning. Having said that, I welcome these government amendments.

Lord Taylor of Holbeach: My Lords, I shall be brief in response to these government amendments, but I shall express my pleasure that the arguments in Committee from my noble friends Lord Cathcart and Lord Kingsland have borne such fruit. The Minister has brought back some comprehensive amendments to clarify what a remediation notice may involve, and to explicitly cover the question of remediation and restoration. Having said that, noble Lords have raised some interesting questions; indeed, my noble friend Lord Kingsland has raised some in speaking to his own amendment. I look forward to hearing the Minister's response to those.

Lord Hunt of Kings Heath: My Lords, I apologise if I misled the House as to which stage we were on. It is always confusing when the Government move the first amendment in a group, which is why I got myself in a tangle there. I suspect that the noble Lord, Lord Kingsland, may speak to his amendment when we come to it in the Marshalled List; in that case I shall respond then, if I may, to the substantive point that he raises. The noble Baroness, Lady Byford, raised the question of whether what I had said in my original response to the noble Lord, Lord Kingsland, could be expressed in legislation. I thought that the noble Lord, Lord Greaves, really answered that point; it would be difficult to do so, which is why we need flexibility.
	Clearly, the licensing authorities themselves will need to issue guidance. The noble Lord, Lord Greaves, then asked whether we, as the Government, should issue guidance to the MMO on that important issue. I take the noble Lord's point and will certainly consider it, because it is important that we understand what is meant on the circumstances in which remediation as opposed to restoration can take place, and the extent to which restoration is appropriate. I doubt whether we can go any further in legislative terms, but it would certainly be important for the MMO to understand the kind of issues that we are debating. Subject to our debate on the amendment proposed by the noble Lord, Lord Kingsland, then, I hope that my amendment finds favour with your Lordships.
	Amendment 102B agreed.
	Amendments 102C to 102G
	 Moved by Lord Hunt of Kings Heath
	102C: Clause 88, page 52, line 34, after "remedial" insert "or compensatory"
	102D: Clause 88, page 52, line 39, after ""remedial" insert "or compensatory"
	102E: Clause 88, page 52, line 41, leave out paragraph (a)
	102F: Clause 88, page 52, line 43, after "any" insert "one or more"
	102G: Clause 88, page 52, line 43, at end insert "(whether or not the steps are to be taken at or near the place where the harm or interference mentioned in subsection (5) has been, is being, or is likely to be, caused or the activity in respect of which the notice is issued is or has been carried on)."
	Amendments 102C to 102G agreed.
	Amendment 103
	 Moved by Lord Kingsland
	103: Clause 88, page 52, line 45, after "protecting" insert "or restoring"

Lord Kingsland: My Lords, I shall move Amendment 103. The initial debate on this amendment has, in a sense, already taken place with my speaking to it in the appropriate group on the list, so I can take what the Minister has said about it as read. In the light of what he said, I have two questions. The first refers to the capacity to make a physical restoration and the second to the cost of having to make it. I respectfully suggest to the Minister that the correct approach to the first question is to ask the following: can the damaged part of the sea be physically restored wholly, yes or no? If the answer is yes, I suggest that the correct approach, subject to the cost, is to undertake complete restoration. If it can be restored only in part, I suggest that the correct approach is the one which the Minister will find under the habitats directive, where the initial aim is to provide the appropriate mitigation or restoration within the damaged area, or the area which is likely to be damaged if the project goes ahead. If it is not possible to restore or to mitigate within the damaged area, there is a requirement in the habitats directive for the developer to find another part of the sea or the estuary where appropriate compensation can be made, so that within a reasonably well defined area of the sea what has been taken away by the developer in area A can be put back in area B. I would very much like the Minister to say that that is an appropriate parallel.
	My more worrying concern is the passage of the Minister's speech referring to cost. He seemed to me to suggest that where an area is physically capable of being restored but the cost is exorbitant—whatever exorbitant means—there will be an obligation to restore it only in part. I hope that I have misunderstood the Minister. I perfectly understand that it might be said that where the cost of restoration was exorbitant, the decision-maker would give consideration to a proposal from a developer that he might make up for the part which is exorbitantly costly by providing an equivalent amount of environmental benefit elsewhere, in a sense, in conformity with what I said about the habitats directive. I would not be happy if the Minister simply says that, where the cost is exorbitant, nothing can be done. That seems to me to drive a coach and horses through the fundamental intention of the legislation so that all the principles which we set out at the beginning could be undermined by a diluted obligation on the wrongdoer to restore. I beg to move.

Lord Hunt of Kings Heath: My Lords, I do not think there is any disagreement between myself and the noble Lord, Lord Kingsland. It is a matter of how this is best expressed in legislation. He mentioned the habitats directive and I refer him to the Environmental Damage (Prevention and Remediation) Regulations 2009, with which I am sure he is also very familiar. In those regulations, there is reference to what is called compensatory remediation. Perhaps I can give an example. If the offender has damaged a wetland breeding habitat for sea birds, we might want to specify as primary remediation that the offender takes certain steps to restore the site which is damaged. However, that may take some time to achieve and, in the mean time, the damaged site will not be available to bird life.
	The Environmental Damage (Prevention and Remediation) Regulations 2009 require compensatory remediation to recognise that loss. Therefore, we might also require that while the primary remediation is taking place, the offender takes steps to create a breeding habitat elsewhere for the sea birds. An example of what the 2009 regulations term "complementary remediation" is that, if an offender has damaged an area altering the conditions so as to render it unsuitable for animals and plants that used to live there, the authority might require him to create an artificial habitat such as a reef elsewhere. That is why I do not think that there is any disagreement between myself and the noble Lord.
	On resources, the point is that there may be a case—it is always risky giving examples—where the damage is slight but the expense is great. In those circumstances, I argue that there needs to be flexibility. I do not think that there is a reason for us to disagree. If the noble Lord is still not satisfied, I am content, without commitment, to consider the matter further before Third Reading, although I am not sure that is entirely necessary.

Lord Kingsland: My Lords, as always, I am most grateful to the Minister for his helpful response to my remarks. I am reassured by much of what he has said. It would be useful if he could give some further thought to what has been said, not just by me but also by my noble friends Lady Byford and Lady Carnegy, who suggested that some help might be given by recognising, to a greater degree, the substance of what the noble Lord has said today. I do not want him to think that I am anything other than extremely grateful for the distance which the Government have already travelled in this respect.

Lord Hunt of Kings Heath: My Lords, before the noble Lord sits down—I have always wanted to say that—I should say that I would be happy to do that. I have some considerable doubt about whether this can be done satisfactorily in terms of the legislation. Perhaps I may also take the point made by the noble Lord, Lord Greaves, about guidance to be given to the MMO. I am very happy to look at both issues.

Lord Kingsland: My Lords, on that basis, I certainly beg leave to withdraw the amendment.
	Amendment 103 withdrawn.
	Amendment 103A
	 Moved by Lord Hunt of Kings Heath
	103A: Clause 88, page 53, line 2, at end insert—
	"(d) preventing or minimising, or remedying or mitigating the effects of, the harm or interference mentioned in subsection (5);
	(e) restoring (whether in whole or in part) the condition of any place affected by that harm or interference to the condition, or a condition reasonably similar to the condition, in which the place would have been had the harm or interference not occurred;
	(f) such purposes not falling within the preceding paragraphs as the enforcement authority considers appropriate in all the circumstances of the case."
	Amendment 103A agreed.
	Schedule 7 : Further provision about civil sanctions under Part 4
	Amendment 103B
	 Moved by Lord Hunt of Kings Heath
	103B: Schedule 7, page 240, line 5, at end insert—
	"This sub-paragraph does not apply in the case of an order made by the Scottish Ministers."
	Amendment 103B agreed.
	Clause 95 : Delegation of functions relating to marine licensing
	Amendments 104 to 106
	 Moved by Lord Hunt of Kings Heath
	104: Clause 95, page 57, line 30, leave out paragraph (f)
	105: Clause 95, page 57, line 35, leave out "and (5)(a)"
	106: Clause 95, page 57, line 35, leave out from "register" to end of line 37
	Amendments 104 to 106 agreed.
	Clause 98 : Register
	Amendment 107 not moved.
	Amendment 108
	 Moved by Lord Hunt of Kings Heath
	108: Clause 98, page 59, line 31, leave out from "would" to end of line 32 and insert "adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate commercial interest."
	Amendment 108 agreed.
	Clause 103 : Power to take remedial action
	Amendments 108A and 108B
	 Moved by Lord Hunt of Kings Heath
	108A: Clause 103, page 62, line 17, leave out "the purpose of" and insert "any one or more of the following purposes"
	108B: Clause 103, page 62, line 20, at end insert—
	"(d) preventing or minimising, or remedying or mitigating the effects of, any harm or interference falling within subsection (3);
	(e) restoring (whether in whole or in part) the condition of any place affected by any such harm or interference to the condition, or a condition reasonably similar to the condition, in which the place would have been had the harm or interference not occurred.
	(3) The harm or interference mentioned in subsection (2)(d) and (e) is any of the following which has been, is being, or is likely to be, caused by the carrying on of the licensable marine activity—
	(a) harm to the environment;
	(b) harm to human health;
	(c) interference with legitimate uses of the sea."
	Amendments 108A and 108B agreed.
	Schedule 8 : Licensing: minor and consequential amendments
	Amendment 108C
	 Moved by Lord Hunt of Kings Heath
	108C: Schedule 8, page 245, line 11, at end insert—
	"The Government of Wales Act 2006
	2A (1) In Schedule 3 to the Government of Wales Act 2006 (c. 32) (transfer etc of functions: further provisions) paragraph 4 (power to direct that certain functions exercisable by a Minister of the Crown are exercisable in relation to Welsh controlled waters only after consultation with the Welsh Ministers) is amended as follows.
	(2) In sub-paragraph (1) (which extends the power conferred by section 58(1)(c) of that Act and specifies the enactments to which it applies)—
	(a) omit paragraph (a) (Part 2 of the Food and Environment Protection Act 1985 (c. 48)), and
	(b) after paragraph (b) insert—
	"(c) the provisions of Parts 4 and 8 of the Marine and Coastal Access Act 2009 (marine licensing and enforcement) specified in sub-paragraph (1A), or
	(d) regulations under section 70 of that Act (appeals),".
	(3) After sub-paragraph (1) insert—
	"(1A) The provisions of the Marine and Coastal Access Act 2009 mentioned in sub-paragraph (1)(c) are—
	(a) sections 64(1) to (5), 66(1), (3) and (4), 68(1) to (3) and 69(1) to (3) (marine licences), so far as relating to items 1 to 6 and 11 to 13 in section 63(1) of that Act (licensable marine activities);
	(b) section 98 (registers);
	(c) sections 103 and 88(7)(c) (power to take remedial action, and power to require payment of sum representing reasonable expenses of taking such action);
	(d) section 104 (power to test, and charge for testing, certain substances);
	(e) sections 225(3) and 230(1)(c) (enforcement officers)."."
	Amendment 108C agreed.
	Schedule 9 : Licensing: transitional provision relating to Part 4
	Amendments 109 and 109A
	 Moved by Lord Hunt of Kings Heath
	109: Schedule 9, page 251, line 10, leave out sub-paragraphs (1) and (2) and insert—
	"(1) This paragraph applies in any case where—
	(a) immediately before the commencement date, an authority was required to maintain under section 14 of FEPA a register (the "FEPA register") containing information of any particular description in respect of any particular area,
	(b) on that date the authority ceased to be required to maintain a register under that section containing information of that description in respect of that area, and
	(c) as from that date the authority is required to maintain a register under section 98 of this Act (the "new register") containing information in respect of that area.
	(2) In any such case, the authority must include in the new register any information falling within sub-paragraph (1)(a) that was contained (or was required to have been contained) in the FEPA register immediately before the commencement date."
	109A: Schedule 9, page 253, line 43, at end insert—
	"Direction under section 58(1)(c) of the Government of Wales Act 2006
	13 (1) To the extent that they relate to the abandonment of an offshore installation, any functions exercisable under the provisions of this Part of this Act specified in sub-paragraph (2) are exercisable in relation to Welsh controlled waters by a Minister of the Crown only after consultation with the Welsh Ministers.
	(2) The provisions are—
	(a) sections 64(1) to (5), 66(1), (3) and (4), 68(1) to (3) and 69(1) to (3) (marine licences), so far as relating to items 1 to 6 and 11 to 13 in section 63(1) (licensable marine activities);
	(b) section 103 (power to take remedial action).
	(3) In this paragraph—
	"offshore installation" has the meaning given by section 44 of the Petroleum Act 1998 (c. 17);
	"Welsh controlled waters" has the same meaning as in paragraph 4 of Schedule 3 to the Government of Wales Act 2006 (c. 32).
	(4) The provision made by the preceding provisions of this paragraph has effect as if it were a direction made by Order in Council under section 58(1)(c) of the Government of Wales Act 2006 (c. 32) made by virtue of paragraph 4(1)(c) of Schedule 3 to that Act and may accordingly be amended, modified or repealed by any such Order in Council."
	Amendments 109 and 109A agreed.
	Clause 112 : Interpretation of this Part
	Amendment 110
	 Moved by Lord Greenway
	110: Clause 112, page 67, leave out lines 16 to 20 and insert—
	"(a) which is registered in the United Kingdom,
	(b) which falls within section 1(1)(d) of the Merchant Shipping Act 1995 (c. 21) (small ships), or
	(c) which is exempt from registration under section 294 of that Act;"

Lord Greenway: My Lords, this is a small but important technical amendment dealing with the interpretation of the words "British vessel" in this part of the Bill. The Merchant Shipping Act 1995 draws a distinction between a British ship registered in the United Kingdom and those registered under the law of a British possession, including Bermuda, the Cayman Islands, Gibraltar and the Isle of Man.
	Certain aspects of United Kingdom merchant shipping legislation can be applied to UK-registered vessels wherever they are and—in broad terms and consistent with international law under the United Nations Convention on the Law of the Sea—to other vessels when they are within the United Kingdom's jurisdiction. Vessels registered in British overseas possessions are subject to the laws of their respective Administrations when outside UK jurisdiction.
	Clause 112, as drafted, refers to,
	"a British ship within the meaning of the Merchant Shipping Act 1995"—
	but fails to address the distinction, important in exercising regulatory powers, scope and coverage, between a vessel registered in the United Kingdom and one registered in a British possession. This amendment, which links the British vessel to United Kingdom registration, will, I hope, correct the anomaly. I beg to move.

Lord Davies of Oldham: My Lords, I thank the noble Lord, Lord Greenway, for his amendment, which the Government are pleased to accept. It will effectively, as he says, remove vessels registered in British Overseas Territories from the need to obtain a marine licence from the Secretary of State when they are depositing, scuttling or incinerating in waters outside the UK marine licensing area. We have, as the noble Lord indicated, an obligation under international agreements to ensure that adequate environmental controls apply to British Overseas Territories and their vessels. However, the territories are already obliged, under the Environment Protection (Overseas Territories) Order 1988, made under the Food and Environment Protection Act 1985, to license vessels registered in their territory for depositing, incinerating or scuttling outside their waters. Therefore, needing a marine licence from the Secretary of State under the Bill would constitute dual licensing. I welcome the clarity that this amendment brings to the Bill and the licensing arrangements faced by vessels registered in overseas territories. I am therefore happy to accept the amendment.

Lord Greenway: My Lords, I can only express my gratitude to the Minister.
	Amendment 110 agreed.
	Clause 113: Marine conservation zones
	Amendment 110A
	 Moved by Baroness Miller of Chilthorne Domer
	110A: Clause 113, page 68, line 8, at end insert "or as a highly protected marine conservation zone"

Baroness Miller of Chilthorne Domer: My Lords, with this amendment we move back to what I think we agreed in Committee was, for many of us, at the heart of the Bill. This is the part that deals with marine conservation zones. I have brought this amendment back, first, because I believe that the terminology is, in itself very unhelpful in discussing what is meant by marine conservation zones. Secondly, the Government are still denying the MMO a vital tool in the box. I thank the Minister for sending the various pieces of draft Defra guidance around; it was very helpful. Having said that, it increased my fear that the terminology is mixed up here; it really should be better defined in the Bill.
	In the beginning, when we talked about marine conservation zones, we were just talking about something that would improve dramatically the conservation effort in marine areas. There were some impassioned speeches, notably by the noble Lord, Lord Eden of Winton, in Committee. I will not rehearse all the reasons why we should have this strong effort towards conservation. However, there are zones in the Bill that can be designated as marine conservation zones at the moment, but all sorts of activities can still apply to take place within them. That is fine; there are many places where lots of activities may still be applicable. There may be one sort of fishing denied and another sort admitted. There may be no dredging at all. Recreational activities may be fine. There is a whole gamut of things.
	However, then we come to those places that I think the noble Lord, Lord Taylor of Holbeach, referred to in Committee as "pristine". The Defra guidance now has a new word for it, which is "naturalness". These are places that really have not been disturbed at all. If you have a zone that really exhibits that, and which has lots of rare species and all or many of the other things that Defra has on its list, surely that place has a claim to being a highly protected marine zone, where it is pointless to apply for a licence because you simply should not be granted it. Any human activity that encroached on the place would spoil it. It should be in the MMO's power to designate such a zone straight away.
	I think that there is still confusion around this subject. Defra's guidance, Delivering Marine Conservation Zones and Marine Protected Areas, refers to marine protected areas' benefits for fisheries. The place that it quotes, again and again throughout this—and under benefits for tourism—is the Lundy no-take zone. If there is one example of a highly protected area, this is it. You cannot extrapolate everything about marine conservation zones from one highly protected area. It would be terrific to achieve the objective of all our seas being as they are around Lundy. However, when the Government talk about designating marine conservation zones, it is not a realistic aim at this point to say that this is where they believe that they will be, even by 2020, let alone 2012.
	Lundy is a particular place. There will be other places around the coast that scientific evidence will show should be a highly protected zone. That is why the Bill needs to give this tool to the MMO, so that it can say that most places that demonstrate good reasons and scientific evidence for having particular protection will simply be marine conservation zones, where licences can be applied for and may be granted if they will not be damaging. However, there will be a few special places that should have absolutely nothing granted that will damage their naturalness or pristineness at all. For example, around Lundy, you cannot even drop an anchor; you must attach to a buoy. I am interested to hear why the Government want to deny the MMO this one very important tool. It has been proved internationally. Every time that the benefits of highly protected areas are widely quoted, it is because they are very highly protected and there is no human activity in them.
	The Wildlife Trusts produced a very attractive brochure, Marine Reserves, which covered what they had campaigned for. The section "Do marine reserves work?" mentions 160 of the world's most eminent marine experts assessing work and deciding that full protection is critical to achieve the full range of benefits. It highlighted that the last point is the important one. The full range of benefits may not always be possible for social or economic reasons, but where the science is driving you to say that an area deserves the full range of benefits, it deserves full protection.
	I ask the Minister to accept that there is a difference in definition and that it is a waste of everybody's time to have people apply for licences and go through the whole bureaucratic process that they would for one sort of conservation zone; and to accept that there should be a few of these particularly special areas that are recognised by this one particular designation. I beg to move.

Lord Livsey of Talgarth: My Lords, I strongly agree with what my noble friend has just said in support of her amendment and I wish to comment on it, very briefly, from a Welsh perspective.
	The Welsh Assembly Government have already confirmed that in Wales a marine conservation zone designation will be used to establish some highly protected sites and zones. Such sites have the greatest potential for delivering biodiversity and the example given by my noble friend of Lundy Island is outstanding. It is well known on both sides of the Severn estuary that, because of the no-take zone, the quality of the fish stocks and biodiversity in Lundy sets a good example throughout the whole of the British Isles. Indeed, I know examples of a similar kind in New Zealand which have produced similar quality results.
	The Countryside Council for Wales, which advises the Welsh Assembly Government, believes it is particularly important for Wales that the Bill enables and supports the creation of highly protected zones in the way described in the amendment. I agree that the inclusion of highly protected zones would be a welcome improvement to the Bill. It would provide a benefit for the Welsh marine ecosystem and could be pursued throughout the waters around the United Kingdom.

Baroness Young of Old Scone: My Lords, I support the amendment of the noble Baroness, Lady Miller of Chilthorne Domer. I used to be completely dubious about highly protected marine conservation zones. I was not convinced that it was necessary—this will be music to the Minister's ears—to have this provision in the Bill. A number of groups tried to persuade me otherwise and, of all the arguments I heard, one changed my mind considerably and I now believe that the Government should fulfil the commitment they made in their response to the Joint Committee report to include a reference to such sites in the Bill. They have not carried out that commitment.
	The reason I was persuaded otherwise was rather bizarre. I, too, commend the very good book produced by the Wildlife Trust movement, but other groups spoke to me about this. We are still in the infancy of marine conservation science. We do not know very much about what goes on under the sea; we do not have good baseline information; and we do not know the true richness of our seas, particularly those closer to our coasts, or what they are capable of because we have not got a memory that goes back to a time when they were not quite heavily exploited, particularly by fisheries. So, unless we get some sites where economic activity is excluded—they do not need to be extensive—and the absolute requirement is that nature be allowed to bounce back to whatever level it naturally bounces back to, we will not know what the marine environment is capable of.
	We all bang on about Lundy, but it is the only live experiment of that kind that we have had so far and it is not a particularly good one. But the richness, size and robustness of the marine ecosystem that was generated as a result of excluding fishing and lobster exploitation from that area should encourage the Minister to go back to the original intention in the Government's response to the Joint Committee and signal to the Secretary of State that some highly protected areas are desirable and should be in the Bill.
	I am not exactly sure of the quotation—something about a sinner saved being worth more than anyone else—but I was a sinner. I did not believe in highly protected marine conservation zones; but now I do.

Lord Greaves: My Lords, I am tempted to start quoting from the Bible about the sinner that repenteth but, as there are no right reverend Prelates here to get it right for me, I shall not pursue it any further.
	I want to say two or three very quick things about the amendment. First, generally, I thought my noble friend Lady Miller was a little dismissive about the bits of paper that the Government have sent round to us. I think that the latest mailing we have had from the Government on marine conservation zones is extremely helpful and shows how far and how quickly the thinking and work is progressing. We received the latest version of the draft strategy on Delivering Marine Conservation Zones and European Marine Sites and the draft guidance on Selection and Designation of Marine Conservation Zones (Note 1)—one in a series of how many, I wonder. The fact that we have received these in time for Report stage here and that they will be available before the whole of the debate in the House of Commons is extremely useful. Those who have obviously been putting in a large amount of work in producing all this documentation and those who are carrying out work on the ground and in the sea are to be commended.
	Secondly, the Government seem to be implying in their briefings that there is not much difference between us. They are saying that there will be a spectrum of marine conservation zones—or perhaps a kaleidoscope of them—which will all have their own individual regimes, rules and regulations and will be different in each case. Some of them will be highly protected at one end and some will be protected for only one purpose at the other end. We understand that. However, the reason there should be a small number of special zones is partly symbolic and partly a declaration that there are some areas where, no matter what people put forward and what they argue, the answer is no. They are special areas, based on the science and on the facts, and are qualitatively different from all other zones, which will be bespoke in the sense that their regimes will vary based on what is in them.
	There will be relatively few special places where the regime is absolute, and that is the difference of opinion between us. I think that difference will run to the end of the Bill, and I hope that the Government will find ways of moving on this. They say that they do not want a two-tier system; we are not talking about a two-tier system. Having a relatively few special areas will not in any way detract from whatever regime there may be in all the other areas. The argument that if you have these special areas everyone will think that it is open house to do anything they want anywhere else does not stand up at all.

Lord Taylor of Holbeach: My Lords, once again I cannot support the noble Baroness's amendment. I have not had the conversion that came fortuitously to the noble Baroness, Lady Young. Not for me the possibility of seeing this differently from my initial reaction.
	I understand the concern of the noble Baroness, Lady Miller, that marine conservation zones should be, when appropriate, of suitable strength properly to protect the environment over which they are established. I also understand the important and often significantly underappreciated contribution that pristine areas, or areas of naturalness, can make to the overall ecosystem. I, too, hope that, in designating the network, the appropriate authority will have the will and power to impose the necessary restrictions over the features that we are seeking to conserve. Listening to the arguments presented by noble Lords only reinforced my view that within marine conservation zones will be many specific designations. Therefore, I still hold the view that I expressed in Committee: that establishing a two-tier system—as it would be if there were two different levels of designation—where the appropriate authority would have to weigh up whether a habitat was worthy of a higher status of protection would be counterproductive.
	MCZs will, I hope, be flexible, targeted webs of different restrictions, changing over time for many reasons. Migratory habits, ever-improving scientific knowledge, the impact of global warming and even the recovery of some features will all make necessary the review of by-laws and planning decisions. Adding another arbitrary feature that would need to be changed would not add to the network but instead make it a little more cumbersome and unresponsive. My later amendment, to Clause 119, to tighten up the duty to designate a network, is my preferred way forward.
	I hope that the Minister will reassure us that what the noble Baroness seeks in her amendment can happen anyway. There is, I presume, no top limit on the amount of restriction that the appropriate authority can impose on an area of sea. If the habitat is found to be so vulnerable and so valuable that it is decided that the only way to protect it is to prevent all activity in that area, that is, as I understand it, possible under the existing drafting.

Lord Hunt of Kings Heath: My Lords, I am relieved that the noble Lord, Lord Taylor, has not strayed from the path of righteousness on this amendment. Having listened with great attention to this debate, I feel that there is no disagreement in principle between us. The Government fully understand the intent of the noble Baroness's amendment, but are concerned that it could have perverse consequences. I generally plead with the House to be very cautious about going down the two-tier route and causing confusion and difficulties in putting the legislation into practice. That, I think, is the argument between us.
	I am glad that the benefit of the draft strategy, Delivering Marine Conservation Zones and European Marine Sites, has been acknowledged. I hope that it is helpful in highlighting the Government's aims and commitment to marine nature conservation. As I have said, I do not believe that there is disagreement between us on the principles. We believe that the powers in the Bill are broad enough in appropriate cases to protect marine conservation zones from all damaging human activities. I can assure the House that the Bill allows for this. We have heard mentioned a number of times the marine nature reserves at Lundy and, as the noble Baroness, Lady Miller, suggested, they are highly protected by anyone's standards. However, I cannot see how the Bill as it is currently drafted would in any way cause a reduction in those standards of protection.
	Clause 113(1) states that the appropriate authority—for England, this is the Secretary of State—may designate marine conservation zones. It applies no restrictions on the power of the appropriate authority to set stringent restrictions. Clause 120(2)(c) refers to the requirement to report to Parliament and talks specifically of areas where licensable or extractive activities are prohibited. Licensing conditions can be set under Clause 68(3). They can be as stringent as necessary and they will come under the duty of public authorities in Clause 121 to best further or least hinder the conservation objectives of each marine conservation zone.
	I accept, as the noble Baroness, Lady Young, said, that there is much scientific knowledge that we need to seek and understand in the years ahead. It is therefore very important that the flexibility exists for the restrictions to change over time. We accept that the levels of restriction required to achieve conservation objectives can change over time, and the Bill, as drafted, allows us to change the conditions. If because of the science it is necessary for further conditions to be set, there is nothing in the Bill to prevent it.
	I come to the two-tier approach. As I have said, we have deliberately designed the marine conservation zones as a flexible mechanism that can be tailored to deliver the precise level of protection needed by the features of each individual site. We think that a two-tier approach is not only unnecessary but could undermine the flexibility which is fundamental to our vision for marine conservation zones.
	As I have said already, we have debated on many occasions the complexity of the marine environment, how our understanding of it is still developing and how our seas are changing in the face of climate change and other factors. Each new scientific study reveals more of the complexities of the living environment in our seas. The dynamic nature of the marine environment means that the levels of protection for individual sites will need to change over time. We therefore need flexibility. Noble Lords should not be concerned that such flexibility will mean that, where we need high protection and very stringent conditions, those conditions will not be applied, because they can be and will be.
	The problem with the two-tier approach is, first, bureaucracy, where the level of protection for marine conservation needs to change in the light of new information. A two-tier approach would require all kinds of processes to enable a zone to be designated in the way that the noble Baroness's amendment envisages, as opposed to what might be called an "ordinary" marine conservation zone.
	Moreover, the two-tier approach does not fit comfortably with the fact that there may need to be different levels of protection within the same site, either at different times of the year or in different parts of the site. The noble Baroness said that if one had a highly protected zone, as in her amendment, it would make it clear to potential applicants for licences that they would have very little chance of success, thereby creating greater certainty. However, I come back to the point raised by the noble Lord, Lord Taylor, that it could also cause a lot of confusion. There is a risk of the lower designation of marine conservation zone being taken to imply that the zone has less conservation value. That is not the case: these zones will be as vital to our network as zones with the highest level of protection. There is a real danger that ordinary marine conservation zones—or lower marine conservation zones, as I describe them—would receive a lower level of legal protection. That would be a problem.
	I feel very strongly about this and I know that the noble Baroness does, too. I assure her that nothing in the Bill prevents an MCZ being designated with the kind of conditions that she wishes to see. It is a genuine concern that her well meant amendment could lead to perverse incentives. Again, the disagreement is not on principle, but simply on the impact that her amendment would have.

Baroness Miller of Chilthorne Domer: My Lords, I warmly thank my noble friend Lord Livsey of Talgarth. His comments about Wales will be the shining example that shows the Government what a trick they are missing here. I am grateful to the noble Baroness, Lady Young of Old Scone, because a conversion is probably worth as much as the huge number of us who already thought as we did. She is absolutely right about the evidence of nature bouncing back; that is a good way of putting it.
	My noble friend Lord Greaves, who supported me, seemed to think that I was dismissive of Defra's guidance; and perhaps I did not say enough about it. It was extremely useful in spelling out the different categories of ecological significance—high natural and biological diversity, representivity, sensitivity, naturalness and so on—because this gave us a flavour of how Defra sees a marine conservation zone working.
	I was extremely disappointed when those on the Conservative Front Bench said that they would not support this. They said that it would establish a two-tier system and would be counterproductive. However, in the terrestrial area there are many protective tiers, such as SSSIs and AONBs, that protect the landscape. National parks protect social activities within a special landscape, and the landscape itself. We are used to working with different tiers to protect and conserve. It is not a new concept, and I am astonished that those on the Conservative Front Bench, who have often talked volubly about conservation matters, and even worked with us on the CROW Act to further their aims, are now withdrawing from them in the context of the marine landscape. That is extremely disappointing.

Lord Taylor of Holbeach: My Lords, I do not wish to pick an argument with the noble Baroness, but that is not the case. We are reasoning on the argument, and I am afraid that the argument presented in her amendment does not warrant our support. We believe in a high level of protection, and we believe that the Bill provides us with a better chance of achieving that protection than her amendment would facilitate. Indeed, it could be a threat to protection elsewhere. I wish that she had listened to the arguments that I presented.

Baroness Miller of Chilthorne Domer: My Lords, I did listen to the arguments, and it did not lessen my disappointment, because what the Conservative Front Bench has given us is the view that there should be no top restriction on red tape such as licence applications. The noble Lord does not agree with me, and I will not labour the point; I would rather turn to the Minister's comments.
	The Minister said that he did not want a two-tier system, but there will be a multi-tier system. I am asking simply for recognition in legislation of the top tier. The Government are ignoring the evidence from around the world that for full benefits, you need full protection. That experiment can never take place unless you recognise it.
	The Minister stated that there could be changing levels of protection over time. That is exactly what I am afraid of. If you have an area that is exhibiting what Defra calls,
	"a high degree of naturalness, with species and habitats ... still in a very natural state as a result of the lack of human-induced disturbance or degradation",
	a changing level of protection over time could only mean a lessening level of protection. In other areas, it might mean that the damage occurs first, and then you protect it later. In some areas—

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness for giving way. It might also mean that, in the light of experience or new scientific knowledge, the protection of some marine conservation zones may be mightily enhanced. The noble Baroness is arguing for two different designations; I believe that it is much better to have a more flexible approach where, in the cases of the marine areas that the noble Baroness has referred to, you can make stringent conditions in relation to licensable activities. The problem with the approach of the noble Baroness is that it would lead to greater confusion. As the noble Lord, Lord Taylor, suggested, a perverse incentive could result from having an ordinary—or lower—level marine conservation zone.

Baroness Miller of Chilthorne Domer: My Lords, I do not think that we will agree on this. It is not what I think that counts, but what the scientists in all the countries in the world who did the work—particularly in New Zealand—came out with. It is universally recognised that there are places where you need a level of protection against, for example, trawling, but where many other activities could take place. In a normal conservation zone you could admit human activity such as sailing, canoeing and so on, and the species and what you are trying to protect in that area of sea will be fine. Other areas will merit a higher level of protection.
	I can see that I will not win the argument with the Government. We have failed to get Conservative support. However, all those people who lobbied so hard for the Bill—for example, members of the Wildlife Trust or the Marine Conservation Society, and others who simply want to see marine areas deliver what science has proved that they can—will need to lobby their MPs and see if this can be changed in the other place.
	I can see some of the Minister's argument, but behind it are other worries. I have no idea whether they concern the Crown Estate or other lobbies, but there is no reason why the Government could not designate a special category for very special places, just as we do in the terrestrial area.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness. I do not know whether she will push this to a vote: I rather hope that she does, because we have identified a clear division and it would be useful to air it. However, I will reassure her on this matter. I know that she has strong views about the Crown Estate, which we might be debating later. The Government's attitude has nothing to do with concerns expressed by the Crown Estate or any other body. We want this to work and we think that we have the right mechanism. In the cases that the noble Baroness described, where a very high level of protection is required, there is nothing in this Bill or anything that any Minister has said that detracts from that possibility. She needs to be very careful about the kind of perverse incentives that would be put in place if we had a two-tier approach to the system.

Baroness Miller of Chilthorne Domer: My Lords, I shall not press this amendment to a Division, because I can see that we are a small number here in support of it. I shall not take up the time of the House with a Division. All I can do is to urge all Members in the other place to look at the scientific evidence from around the world and to support this concept and try to persuade the Government. In the mean time, I beg leave to withdraw the amendment.
	Amendment 110A withdrawn.
	Consideration on Report adjourned until not before 8.30 pm.

Privy Counsellors
	 — 
	Question for Short Debate

Tabled By Lord Rodgers of Quarry Bank
	To ask Her Majesty's Government what is the role of Privy Counsellors.

Lord Rodgers of Quarry Bank: My Lords, I am particularly grateful to the Lord President for replying to this modest debate when she has so many heavy responsibilities. Let me explain the occasion that prompted me to initiate this debate. It was the news last summer that Ministers would table a number of late amendments to the Counter-Terrorism Bill 2008. The object was to make 42 days of detention more palatable to the House of Commons Back-Benchers by strengthening the safeguards through parliamentary scrutiny. In new Clause 26, it proposed that the chairmen of three Commons Select Committees should receive confidential briefing on Privy Council terms. In the event, Part 2 of the Bill was abandoned, and I am not pursuing the substance of the matter. My long-standing concern—I had it long before the BBC thought up this morning's Radio 4 programme—is the wider role of privy counsellors. I want to know what privy counsellors are for.
	Is membership of the Privy Council a titular honour—"the right honourable"—and a reward for public and political service, which is usually assumed? Or does it have, or should it have, a potentially significant function within the processes of government? I have wondered about this since I became a privy counsellor more than 30 years ago.
	I refer, if I may, to my own experience. In a conversation with Harold Wilson, then Prime Minister, when he proposed to make me Minister of State for Defence, I asked whether I would become a privy counsellor. He hesitated for a moment and then said, "Soon". I saw it as he saw it—as an honour—and I was very pleased when I was appointed a year or so later. But on the very day of the announcement of my appointment, the chief scientist at the Ministry of Defence, Sir Hermann Bondi, came into my office and said that he was delighted because I could now take the chair for a crucial and difficult meeting to resolve a dispute between the scientists and the Navy over the top-secret Chevaline nuclear weapons project. Clearly, I now had a practical and very sensitive role, although it seemed that I had been appointed a privy counsellor only as an honour.
	In due course, I must have taken the privy counsellor oath to "keep secret all matters" and to defend Her Majesty against,
	"all Foreign Princes, Persons, Prelates, States, or Potentates".
	But I was still the same man. I had been positively vetted and had read top secret telegrams years before when I was a Parliamentary Under-Secretary in the Foreign Office. So, on the face of it, you could deal with highly confidential and security matters before becoming a privy counsellor. The members of the council all seem eminently respectable, but not necessarily men and women best suited to deal with security matters.
	I shall look at some of the members of the present Government and assume that membership of the Privy Council is the dividing line between taking the Privy Council oath—proposed for the three chairmen in new Clause 26—and not having done so.
	The Counter-Terrorism Bill was taken through this House by the noble Lord, Lord West of Spithead, whose special responsibilities include counterterrorism, science and technology. But he is not a privy counsellor; he is on the wrong side of the line, despite his distinguished, very senior naval career. Is he not appropriate or permitted to deal with such secret matters? My noble friend Lord Carlile of Berriew, though not a Minister, is appointed to be the independent reviewer of anti-terrorism legislation. He is certainly involved in secret matters but, like the noble Lord, Lord West, he is not a privy counsellor. The noble and learned Baroness, Lady Scotland, is a privy counsellor as Attorney-General, and deals with a wide range of sensitive matters, but the Solicitor-General, Vera Baird MP, is not, although she may be required to exercise exactly the same statutory powers as the Attorney-General. Is she not appropriate or permitted to deal with such legal and justice matters, discussing them with the Home Secretary or the Lord Chancellor? Of course, it is nonsense.
	On 5 October last, a press notice came from No. 10 saying that Her Majesty the Queen had approved eight new privy counsellors. I shall not mention their names now, because I am concerned only with the principle, but several of them moved up the ministerial ladder, several moved sideways, and one left the Government altogether. What common quality was there between the eight who entered the Privy Council? I can find none. There are some 550 members of the Privy Council, but there is no limit to numbers and 42 new appointments were made in the past two years. The Prime Minister of the day can appoint whoever he likes, and as many as he likes, with no explanation. There is an elaborate and lengthy bureaucratic process by which suitable men and women are carefully considered with a view to an honour at the New Year and the Queen's Speech. They extend from an MBE to a Companion of Honour—a CH—but candidates for the Privy Council are not included. The Prime Minister makes the decisions and recommends the names to the Queen—and, following tradition, includes the two distinguished Prelates, the Archbishops of Canterbury and York, and the Bishop of London.
	All privy counsellors are equal, but some seem to be more equal than others. In a debate on the Civil Contingencies Bill in 2004, the noble Lord, Lord Bassam of Brighton, speaking for the Government, said that a "senior privy counsellor" would annually review the operation of the Act. It was news to me that there were junior and senior privy counsellors. I would therefore be grateful if the Lord President could confirm who are the junior and who the senior privy counsellors. Is it a matter of chronology in appointment, or is there some other factor?
	If the Prime Minister refers to Privy Council briefing, as he sometimes does, it does not mean all members of the council but a selected few. When the council meets at Buckingham Palace in the presence of the Queen to transact legislative business, only a handful of ministerial privy counsellors attend. If others tried to join them, they would be excluded, although all privy counsellors are supposed to have direct access to Her Majesty.
	I remember a splendid banquet in the Royal Gallery of the House on the Queen's Jubilee, when all members of the Privy Council seem to have been invited, but there has been no other collective occasion for very many years. The whole council is summoned to a formal meeting only to proclaim a new monarch or to consent to a Royal marriage. Privy counsellors play no part in the Privy Council Office and I am sure that most of them have never visited it.
	I am not diminishing the function of the Lord President's office, because it does some very useful work in regulating chartered bodies, charities and other institutions. Nor am I concerned now about the Judicial Committee of the Privy Council, which is seen to be controversial. It is the role of the individual privy counsellors that is the subject of this debate.
	Anyone who is invited to be a privy counsellor is delighted. I remember one new privy counsellor was so enthusiastic that he foolishly tried to personally amend his passport, causing rather a fuss. And I did not complain when I was upgraded by American cabin staff on a flight from Chicago to Seattle when I was asked the significance of "right honourable". I do not want to lose our little pleasures, but I repeat: what are privy counsellors for?

Lord Norton of Louth: My Lords, I congratulate the noble Lord, Lord Rodgers of Quarry Bank, on raising this question. This is a timely opportunity to look at what privy counsellors do and, perhaps of greater importance, what they could do. In some respects, privy counsellors are similar to the Members of the House of Lords. I appreciate that the two categories are by no means mutually exclusive. Privy counsellors comprise a large body of distinguished public servants—not quite as many as Members of the House of Lords but, at approximately 550, still a large number—and have an institutional framework. They also have a judicial arm. Like in the House of Lords, meetings are subject to a small quorum.
	However, unlike the House of Lords, the Privy Council is arguably a somewhat shapeless body, certainly not one that is utilised as effectively as it might be. The council itself, as the noble Lord indicated, has an important formal role. As Bradley and Ewing note in the 14th edition of Constitutional and Administrative Law:
	"the Order in Council remains an important method of giving the force of law to acts of the government, especially the more significant executive orders".
	The role of privy counsellors, other than the four or so summoned to attend meetings of the council, is less clear. There appear to be two principal purposes for creating privy counsellors. One is as a reward for notable public service. In this sense, being made a member of the Privy Council is an honour on a scale similar to some others announced in the Queen's Birthday and New Year's Honours Lists. The other is to enable members to be briefed confidentially, not least on issues of national security. The crucial element is the oath, which I gather dates from 1250 and which, to quote Peter Hennessy in his massive tome titled Whitehall, "has life and bite". He sees it, somewhat negatively, as encouraging closed government, but it does enable confidential information to be shared. That is the reason for making the leaders of opposition parties privy counsellors and, on occasion, other parliamentarians and sometimes people outside Parliament. In the 1970s, Len Murray, the general-secretary of the TUC—later Lord Murray—was made a privy counsellor to facilitate consultation on government policy. It also justifies the composition of the Intelligence and Security Committee.
	There does not appear to be much beyond that in terms of a functional role, and even that utility is sporadic rather than regular. It is, in effect, an underused resource. What I wish to raise is how it may be used in the future.
	There have been occasions when privy counsellors have been drawn on to form or participate in public inquiries. Non-statutory inquiries undertaken by a panel of privy counsellors include the inquiry into the interrogation of terrorists, under Lord Parker of Waddington, in 1971; the Falklands Islands review, under Lord Franks, in 1982; and the review of intelligence on weapons of mass destruction, under the noble Lord, Lord Butler of Brockwell, in 2004. There are various advantages to utilising privy counsellors in this way. There is a substantial pool on which to draw. One can utilise privy counsellors with relevant skills, including those of forensic questioning. Utilising a panel of privy counsellors has advantages over the use of judicial and parliamentary inquiries. Inquiries by judges can make a substantial drain on judicial resources, especially where, as in the Saville inquiry, they are lengthy and, if on contentious issues, may draw judges into areas of public and political controversy. Parliamentary committees are not necessarily geared to fault-finding exercises and may not be in a position to receive confidential information. Demands on members' time may also prevent them being able toengage in scrutiny of large numbers of documents and embark on time-consuming inquiries.
	There are thus advantages to drawing on privy counsellors to undertake certain inquiries. This has been recognised, not least by the Public Administration Committee in the other place. In its report on Government by Inquiry in 2005, it recommended that inquiries into the conduct of Government should not be left to Ministers, but rather should be undertaken by a parliamentary commission of inquiry composed of parliamentarians and others. It acknowledged the problems associated with inquiries undertaken by Select Committees.
	It returned to the subject in its 9th report of last Session on Parliamentary Commissions oflnquiry, arguing that Parliament should devise a mechanism so that it could instigate, as necessary, parliamentary commissions of inquiry with enforceable powers to summon witnesses and access papers and to meet in private, as necessary. It argued in paragraph 7:
	"Inquiries initiated by Parliament are especially suitable for investigating topics that have a political dimension. As we have already observed, it is more legitimate and serves the interests of accountability more effectively for Parliament, rather than the Executive, to inquire into the actions of executive government. Where politically sensitive subjects are concerned, parliamentary inquiries are also preferable to judicial ones".
	It also turned to the issue of membership and here was more explicit than in its earlier report. It recommended in paragraph 17, and I quote the recommendation in full:
	"We believe that decisions about the membership and chairmanship of a Parliamentary Commission of Inquiry should be undertaken carefully in order to avoid the Inquiry being undermined by partisanship or political concerns. To operate effectively, a Parliamentary Commission of Inquiry should consist of a Committee of Privy Counsellors appointed by Parliament. Individuals could be made Privy Counsellors in order to serve on an inquiry of this nature. Members should be drawn from both Houses of Parliament, with external members appointed where appropriate for their specialist expertise".
	In its response in October of last year, the Government noted that creating such commissions was essentially a matter for Parliament, although it did say that it did not share the committee's view that it was more legitimate and serves the interests of accountability more effectively for Parliament, rather than the Executive, to inquire into the actions of executive government. It offered no justification for its view and seemed unaware that the very basis of the case for parliamentary inquiry was implicit in its own observation. There is an obvious case to be made that the executive inquiring into the executive is not the best basis for enhancing public confidence in an inquiry.
	On membership of a parliamentary commission of inquiry comprising privy counsellors, the Government's response noted that membership of the Privy Council was conferred by the Queen, acting on the advice of Ministers. It continued:
	"There would be an issue to be considered about whether it would be appropriate to confer this status on someone for the purposes of undertaking a specific task. Parliament itself could not make a recommendation for Privy Council membership, still less confer the status".
	There are two responses to this. First, the Butler commission was established to fulfil a specific task and membership of the Privy Council was conferred on those members who were not already privy counsellors. Secondly, the occasions when a commission is formed with one or more members who are not privy counsellors may be extremely rare and, if necessary, may be engineered in order not to be necessary at all. Given the size and quality of the existing membership of the Privy Council, there should be little difficulty crafting a panel comprising parliamentarians and some outside experts, all of whom are privy counsellors.
	The idea of utilising privy counsellors in this way is not new. In his book Constitutional Practice, published in 1988, Professor Rodney Brazier wrote that some inquiries would be better undertaken by senior privy counsellors on behalf of Parliament. The proposal thus has some serious support.
	My basic point is that there is a case for making greater use of privy counsellors, utilising them in effect as a standing panel, available to be drawn on as appropriate to form parliamentary commissions of inquiry. That may not necessarily be their only use. Some bodies have suggested drawing on them for other purposes. There may be a case for a wider review of what use can be made of the Privy Council, but there is already a clear case for utilising it for what it is—a repository of knowledge, drawing on senior public servants drawn from a wide range of backgrounds.
	The case for creating parliamentary commissions of inquiry composed of privy counsellors is ultimately a matter for Parliament rather than government. However, as the Lord President of the Council is replying to the debate, she is in a position to offer what I trust will be a helpful response.

Lord McNally: My Lords, the noble Lord, Lord Rodgers, has got into the habit of using these debates to provoke thought and debate on issues of importance. By so doing, there is the added benefit that he coaxes the noble Lord, Lord Norton of Louth, away from academia to put on record his forward thoughts, which are always of interest and importance. As the noble Lord, Lord Rodgers, himself mentioned, we have the excellent timing that Mr Quentin Letts asked pretty well the same question as we are asking on Radio 4 this morning. I understand that you can still hear that programme on the piece of machinery that my teenage son understands but that I have not yet managed to get to work. I am beginning to sound like those old judges who asked "who are the Beatles?", but noble Lords know what I mean.
	The programme posed the question, as did the noble Lord, Lord Rodgers: what are privy counsellors for? Certainly, when you look into the matter, there are shades of Blackadder about the paraphernalia around the Privy Council. I found it of interest that we have some 550 privy counsellors today, whereas Henry VIII made do with about 40. On the other hand, it was a whole lot more dangerous to be a privy counsellor for Henry VIII. Also, and this has run through both contributions so far, there is a seriousness about the Privy Council and its powers.
	First, as the noble Lord, Lord Rodgers, rightly acknowledged, there is a powerful power of patronage for the Prime Minister in being able to grant the title "right honourable". I remember when I worked for Mr Callaghan, as Lord Callaghan then was, as an adviser in 10 Downing Street, he asked me to sound out a Labour Member of Parliament about whether he would like an honour. I always remember that the MP said to me, "There is only one honour I'm interested in and that is 'the right honourable' in front of my name". That is true of most practising parliamentary politicians. In the programme that I referred to, Michael Portillo said that "right hon." was the best club badge that you could get in the Westminster village, and I think that that is true.
	It would not really matter much if the council were no more than that—a quaint anachronism, one of the more dignified parts of our constitution or, as Quentin Letts, in his usual fashion put rather cruelly this morning, a prize for the fading "alumni of Parliament". There is also, as the noble Lord, Lord Norton of Louth, pointed out, a real advantage in having the council as a ready store of licensed secret keepers for use in inquiries. The points that he made this evening bear further consideration as we look at constitutional and parliamentary reform. Those were worthwhile ideas.
	However, there is a more serious accusation against the Privy Council—that it is a loophole in our democracy and accountability. This morning, in that well listened-to programme, Mr Jack Straw confessed that the Privy Council could be used in "exchanging legitimacy for speed". He was referring to the particular instance of the use of the Privy Council in the case of Diego Garcia and the right of return of the Chagos islanders to their homeland. It is one single example, but it is such a shameful example that it bears examination. A group of citizens won their case in the courts of law yet the shadier part of our constitution provided by the Privy Council allowed that decision to be overturned and then upheld by this House.
	Tonight is not the time to examine the sad story of Diego Garcia in detail, but the more that is revealed of that story over 40 years, the more shameful it is for successive Governments of all political hues. However, it is right to ask whether the way that Privy Council powers were used does not shine a harsh spotlight on its powers and its uses by government. I await with interest the constitutional reform Bill, where we may be able to look at some of these matters.
	I remember in the 1980s and 1990s Mr Tony Benn having a strong campaign to abolish the royal prerogatives. At that stage, I tended to have a powerful Pavlovian reaction that anything Mr Benn proposed must automatically be wrong, but since then I have begun to review my position. The royal prerogatives—the Privy Council powers—create a loophole in our constitution, which is a weakness in terms of parliamentary democracy. I suspect that successive Governments have clung to this apparent anachronism not from a desire to protect the monarch from radical parliamentarians, but as a way of protecting themselves from parliamentary scrutiny. Although we have had some interesting comments about the more pleasant aspects of being called right honourable, being a member of the Privy Council and having this parliamentary badge, we must also look, particularly as we look towards the constitutional reform Bill, at whether some of the powers of the Privy Council are not in fact a useful smokescreen for an Executive who want to avoid parliamentary scrutiny.

Lord Jopling: My Lords, I congratulate the noble Lord, Lord Rodgers, on raising this matter. I have not been a privy counsellor for quite as long as him. I have been a privy counsellor for almost precisely 30 years and, like him, I have attended a good many meetings of small groups of the Privy Council with Her Majesty. While I hope profoundly that I enjoy a long life, I hope equally profoundly that I never have to attend the one great meeting of the Privy Council on the death of the sovereign.
	Having listened to the debate, I honestly think we are making far too much of it. It is all a bit of a red herring. We heard the noble Lord, Lord Rogers, talking about the moment, that great moment in the Ministry of Defence, when he became a privy counsellor and he was allowed to talk about nuclear matters. We then heard about senior members of the armed services who are not privy counsellors, who are clearly involved in all this. The fact that these matters are allowed to be shared with a privy counsellor in the Ministry of Defence is a total, unnecessary red herring—I think it is rubbish.
	My old friend, the noble Lord, Lord McNally, talked about Members of Parliament who felt that the greatest accolade was to have "right honourable" in front of their name. I have to tell him exactly the opposite. In the days when, like him, I was working down at the other end of the building, one heard of Members of Parliament who were offered privy counsellorship who said—this is all apocryphal, you would not want me to enlarge on this—no, no, they would much prefer an knighthood because they wanted recognition for their wives. There are two sides to all of this.
	We heard about privy counsellor-only committees. I suggest to your Lordships that that is just a convenience. If you did not have privy counsellor-only committees, much the same people—because of their distinction, apart from being privy counsellors—would still be put onto committees of that sort. I was once what was, down at the other end of the building, rather rudely called the Patronage Secretary. I think privy counsellorship is a charming accolade bestowed on people of distinction. The problem with it is that it is much too narrow. Far too many privy counsellorships are directed to people who are active in this very building. I would like to see a much wider group of people considered for privy counsellorships, right across the activities of the nation. The distinguished people in the nation are not just the people who work in this building. There are far too many people appointed to privy counsellorship within this building, and I would like to see it widened very much.
	I take huge pride in the fact that I am a privy counsellor, and I do not want my remarks to suggest that I do not think that it is a matter of tremendous pride. It is, and anyone who has the privilege of being a privy counsellor understands that it is something very much to be prized.

Lord Kingsland: My Lords, I, too, add my congratulations to the noble Lord, Lord Rodgers, on introducing this topic today. He seemed to focus, to a considerable degree, on the distinction—it is an important distinction—between the functional role of privy counsellors and the honorific role. The list of privy counsellors, which now exceeds 500, we are told, plainly contains members who fall into both categories.
	What should the extent of the functional part of that list be? We know that Cabinet Ministers, by constitutional convention, must be privy counsellors and we need spend no further time on that. It is an admirable convention, because Cabinets regularly consider matters of high national security. It is reassuring to us all that they have taken the oath. The oath, as I recall—we have already been told that its origin is in the 13thcentury—certainly makes the taker wonder whether he can live up to the very high duty that he owes to Her Majesty. In addition to Cabinet Ministers, there are certain Ministers of State, who used to be referred to as those who were not in the Cabinet but of Cabinet rank. Also, certain Ministers who consistently deal with security matters are, or ought to be, privy counsellors.
	Then there is the judiciary. The reason a certain number of judges have to be privy counsellors is because of the Judicial Committee of the Privy Council, which still serves a number of dependent territories of the United Kingdom. All members of the Appellate Committee, soon to be translated to the Supreme Court, are rightly privy counsellors; and all the members of the Court of Appeal are also privy counsellors. Not so long ago, the Court of Appeal was a rather small body and its members needed to be privy counsellors because, from time to time, they were called on to serve in the Judicial Committee of the Privy Council to supplement the judges of the Appellate Committee, who were simply not available when they were sitting on the Appellate Committee. Now that we have a Court of Appeal numbering no fewer than 38 members, one wonders whether one can say that all of them are serving a functional purpose. At least a proportion of the Court of Appeal's privy counsellors are, frankly, there for purely honorific reasons. The Court of Appeal's functional reasons in the old days have not led any Government to have a cut-off number for making privy counsellors in the Court of Appeal such that, when a judge is initially appointed to the Court of Appeal, he is not made a privy counsellor and only becomes one when it is really felt that he is needed to add to those in the functional section.
	The other category of privy counsellors applies to Back-Benchers who have had meritorious careers, not as members of the Executive but as parliamentarians. It has become the practice to make chairmen of senior Select Committees privy counsellors. This is an excellent convention. Indeed, I would like to see the day when chairmen of Select Committees had the same status as Cabinet Ministers. It would mean that the task of controlling the Executive in another place was regarded as just as important as being in the Executive. One would wish to see, in future, young people entering another place being in genuine doubt as to which of the two sorts of political career they would like to follow. If it became the well established tradition that Back-Bench Select Committee chairmen were always made privy counsellors, we would be making a good start in that direction.
	We have been told that 42 members of the Privy Council have been sworn in over the past year. I have not seen the list because I am not quite sure where to look for it; it is certainly not widely publicised. I suspect that quite an important proportion of this list is purely honorific. With great respect to the present Government, it was a mistake for them to stop the practice that was carried out throughout the 18 previous years of Conservative Government. During those years, unless you were a Cabinet Minister, you could only become a privy counsellor if you appeared in one of the two annual honours lists. I invite the noble Baroness to look back at those. She will find that all other privy counsellors—excluding judicial members of the Court of Appeal, who were appointed automatically—appeared in either the Queen's Birthday Honours List or the New Year's Honours List. To my almost certain recollection, there never was a time when more than three or four were appointed in each honours list.
	That seems to be an approach worth the Government's while considering. It not only contains the acceleration of privy counsellors who were made privy counsellors for purely honorific reasons, but also helps the Prime Minister when he is put under pressure to make a new privy counsellor, which we have learnt from the noble Lord the Leader of the Liberal Democrats in your Lordships' House plainly happened from time to time. I suggest that it is not only the proper approach to making new political privy counsellors outside the Cabinet, but one that the Prime Minister would find extremely helpful.
	Perhaps the most important part of the debate this evening is that which deals with the functions of the Privy Council. Two matters have been touched on with customary skill, one by my noble friend Lord Norton of Louth and the other by the noble Lord the Leader of the Liberal Democrats.
	I had the opportunity to speak on those matters to which my noble friend Lord Norton referred in proceedings on the tribunals and inquiries Bill. I came to almost precisely the same conclusion that he has come to. It ought to be rare for a judge to chair an inquiry, for both the reasons that he gave. First, we know that judges are under intense pressure in the courts, and for the Lord Chief Justice to allow a senior judge to have significant time off to conduct an important public inquiry undermines the task that Parliament has set him. The most graphic example of that is the noble and learned Lord, Lord Saville, who started his inquiry into Bloody Sunday in 1998 and is unlikely to complete it before 2010. Perhaps an even better reason for not using judges is that, inevitably, most inquiries that the Government think are of sufficient importance for a judge to chair are likely to deal with very controversial matters, thus dragging our judges even further into a political world that they have had to grow used to inhabiting since the passage of the Human Rights Act.
	I am extremely attracted to parliamentary inquiries, and I find the United States Senate an illuminating analogy. The parliamentary inquiry should be a Joint Committee with no political party having an absolute majority. In important inquiries, the parliamentary membership should be composed of privy counsellors. Those two locks to prevent party politics infecting their operations would produce results that would be more accountable to the public than those that would be achieved by judges. Parliament should not be frightened of taking that role. It is perfectly capable of devising a scheme that would ensure that the decisions made by the inquiry would not be based on party politics.
	The other matter—there is no need to do more than touch on it today—is the extent to which the royal prerogative, for the exercise of which privy counsellors are almost exclusively responsible, should be cut down by statute. We have already had the graphic example of the islands. Closer to home, I note that in the draft Constitutional Renewal Bill there is, it seems to me, a clear intention by the Government to substitute many of the prerogative powers in relation to the Civil Service for a statutory scheme. We do not know exactly what changes the Government will make to the draft Bill but I would be—

Lord Brett: My Lords, I am sorry to interrupt the noble Lord but the debate is timed to end at 8.30pm. He is in the 14th minute of his speech and the Lord President of the Council only has 12 minutes to respond, so I ask him for an early end to his contribution.

Lord Kingsland: My Lords, it may be that the debate is being dealt with in a specific way in which case I apologise for talking so long; but it does rather go to the core of our constitution. My understanding is that if a dinner debate overran then the Bill would start after the debate was over. I can think of many dinner debates in the past that have continued for two or two and a half hours. I am not suggesting that I will speak for more than two or two and half minutes; but it may well be that since I last spoke in a debate during the dinner hour the rules have been changed.

Lord St John of Fawsley: My Lords, would my noble friend allow me to interrupt him very briefly to ask him if he realises that the points he has made about chairmanship of Select Committees, membership of the Privy Council and providing an alternative career structure were exactly those I made when I persuaded the other place to pass the resolutions on Select Committees? I entirely agree with him; of course I was not as eloquent as him but I was just as convinced.

Lord Brett: My Lords—

Lord Kingsland: My Lords, can I just deal with that point, please? I am most grateful to my noble friend for intervening. I ought to have paid full credit to my noble friend for what he did. I think the changes were completed in 1981 or thereabouts. I suppose that it was the first time since the guillotine resolutions were introduced in the 1880s that there was a real fight-back in another place against the Executive, for which he should be uniquely credited.

Lord Brett: My Lords, I am sorry to intervene but this is a timed debate, limited to one hour. It is made very clear that, except for my noble friend Lady Royall of Blaisdon, all speeches are limited to 10 minutes. She was limited to 12 minutes; she now has only 11.

Lord Kingsland: My Lords, I am quite sure, especially as I speak regularly in the debates on the marine Bill, that those of us involved will be only too delighted to allow this debate to run a little longer in order that the noble Baroness the Lord President of the Council can have ample time to reply. I shall crave the indulgence of the Government Front Bench for one more minute.

Lord Brett: My Lords, I am sorry to interrupt the noble Lord, but there is little point in the House devising for itself conventions and rules about time limits on speeches if they are not observed. It is not only that the Minister is being denied her full time; other noble Lords who have contributed to this debate have taken less than their allotted 10 minutes. Therefore, the noble Lord is being unfair not only to the Minister but to other noble Lords who participated in the debate.

Lord Kingsland: My Lords, I would not want to excite the noble Lord even further. In those circumstances, I shall retire.

Baroness Royall of Blaisdon: My Lords, I congratulate the noble Lord, Lord Rodgers of Quarry Bank, on securing this debate. Like the noble Lord, Lord Jopling, and other noble Lords, I take huge pride in the fact that I am a privy counsellor, and indeed that I am Lord President of the Council.
	The Privy Council dates back to at least the 13th century. It formerly ran the whole Government, along with the Exchequer. The Cabinet is a committee of the Privy Council, which is why all Cabinet Ministers have to be privy counsellors too. Some modern departments were originally boards of the Privy Council, such as the Board of Trade and the Board of Education.
	These days the Privy Council is simply another way of saying "Ministers collectively". It is a thoroughly modern example of joined-up government which provides a highly effective means of dispatching a great deal of public business. The Privy Council approves amendments to the byelaws and statutes of chartered institutions. It also approves rules made by the statutory registration councils responsible for the medical and certain other professions, and it makes instruments of government for higher education corporations. In addition, it makes certain appointments to statutory bodies.
	The Privy Council is served by the excellent Privy Council Office, which has done a huge amount to remove the perception that the council is too secretive. There is nothing secret about it. The dates of its meetings are posted on the Buckingham Palace website, and the day after every meeting the Court Circular gives details of those who attended. The Privy Council Office is fully committed to open government and its website explains the role in great detail. It is always happy to answer questions about the council's activities. It also lists all members of the Privy Council, and I can furnish any noble Lord with a list of the recently appointed privy counsellors.
	On prerogative business, where there is no legislation allocating the responsibility to a particular Minister, the council provides a mechanism for giving ministerial advice to the Queen, as constitutionally the Queen acts only on such advice. On statutory business, where the use of "the Privy Council" rather than "the Secretary of State" in an Act enables more than one government department to be involved, it allows joined-up government. It also enables the devolved Administrations to be involved, as the First Ministers are all privy counsellors.
	There are only small areas of government business which Ministers deal with as privy counsellors. The fact is that almost all the prerogative powers formerly exercised by the Privy Council have been taken over by Parliament. The vast majority of the prerogative business done by the Privy Council is not significant enough for Parliament to want to take it over—for example, the affairs of chartered bodies.
	The role of privy counsellors, and indeed of the Privy Council, is often misunderstood. The main misconception relates to the name and the council's historical role. "Privy Council" suggests secrecy and a body acting as a counterpart to the elected Government. As I have said, the Privy Council simply means "Ministers collectively". There can be no difference between Privy Council policy and government policy, and Ministers are accountable to Parliament for all matters conducted through the Privy Council.
	Although the continued existence of the Privy Council is more or less a constitutional and historical accident, it provides a convenient mechanism for involving more than one government department in policy decisions. Its role has become more important since devolution, as it provides a way of ensuring that Ministers of the devolved Administrations are included in cross-border issues that fall to the Privy Council.
	The appointment of privy counsellors is made by the Queen on the recommendation of my right honourable friend the Prime Minister. However, I take note of the advice from the noble Lord, Lord Kingsland, that perhaps we should look to what happened under past Conservative Governments, because that might be of assistance to my right honourable friend the Prime Minister. This ensures that the Queen is suitably and properly advised on all matters which come before her in Council.
	In determining who should be appointed, a range of factors are taken into account. Those appointed mostly comprise Ministers, other parliamentarians and members of the judiciary. There are no senior or junior privy counsellors, so there are no privy counsellors who are more equal than others. Only current Ministers have a role in Privy Council meetings.
	New appointments are normally reserved for those who are involved in affairs of state and who have a close and confidential relationship with the Crown. In practice, this means those who have obtained high office in the executive or the judicial branches of the state, either in this country or in one of the countries of which the Queen is Head of State. It follows that most new privy counsellors are serving Ministers, judges or Commonwealth appointments.
	I am glad that the noble Lord mentioned the Judicial Committee of the Privy Council. There appears, these days, to be an expectation by Lords Justice of Appeal that they will be made privy counsellors. This seems to be an automatic right, but it is unlikely that they will all be required to serve on the Judicial Committee of the Privy Council.
	The noble Lord, Lord Rodgers of Quarry Bank, raised interesting issues relating to the appointment of privy counsellors. A privy counsellorship is not an honour, it is an appointment, and in the case of politicians normally goes only to serving Ministers of the Crown, who are actually expected to play a part in the proceedings of the Privy Council. There are, however, exceptions where various politicians have been appointed to the Privy Council without ever having held ministerial office. In these cases, the secrecy enjoined by the privy counsellors' oath is not used as an excuse for concealing information, but to enable senior members of opposition parties to be given briefings on confidential terms. Such an arrangement is entirely voluntary, and anyone not wishing to be briefed on such terms may decline the invitation. Having accepted a briefing on privy counsellor terms, however, he or she is understood to have agreed to treat it as confidential.
	Noble Lords will know that membership of the Privy Council is for life, and that as a result there are 545 living privy counsellors, most of whom are clearly not Ministers. That explains why we have rather more than the 40 of Henry VIII. The 545 play no part in the Privy Council's day-to-day business and are not summoned to Privy Council meetings. There are only two occasions when the whole of the Privy Council is summoned to a meeting: on the marriage of a reigning Sovereign and, on the accession of a new Sovereign—the Accession Council.
	Noble Lords will also be aware that, from time to time, a committee or other body is set up, comprising privy counsellors, usually distinguished people who either never were, or have ceased to be, Ministers. These bodies do not form part of the official Privy Council mechanism. They are not committees of the Privy Council; they are committees of privy counsellors. They do not report to the Lord President of the Council, and they are not serviced by the Privy Council Office. Examples include the Newton committee and the Butler committee, cited by the noble Lord, Lord Norton of Louth; he raised some very interesting suggestions regarding more and better use of privy counsellors, as members of parliamentary commissions of inquiry, for example.
	I welcome such ideas and I agree that, on occasion, such commissions might well be preferable to judicial inquiries because of time constraints, although I hope noble Lords will agree that there will never be an inquiry as lengthy or as costly as the Saville inquiry. I will take these ideas back to some of my colleagues, who have considered them in the past, but they are certainly worth considering again. I am much attracted by the suggestion that Select Committee chairmen should be privy counsellors.
	The Privy Council has a number of standing committees: the universities committee, the baronetage committee and committees on the Channel Islands and the Isle of Man. There are also various ad hoc committees.
	The noble Lord, Lord McNally, referred to what he called the shameful case of the Chagos Islands. As he said, my right honourable friend Jack Straw stated in a programme this morning that, with hindsight, he should have engaged in parliamentary scrutiny to debate the issue of the Chagos Islanders. I am sure that that is the case, and while I understand the concerns expressed, it is right to stress that the Privy Council is not a sinister counterbalance to the elected Government, or a means of avoiding parliamentary scrutiny. Ministers are accountable to Parliament for all matters conducted through the Privy Council, and almost all important statutory Orders in Council are subject to parliamentary procedure.
	There are those who argue that the Privy Council is an outdated institution. I do not agree. There are those who will argue that the Privy Council is unconstitutional and that there is a lack of transparency and democratic accountability, but that is not the case. There are those who will put forward arguments that prerogative powers have no place in a modern democracy, and that is something that the Government continue to review. The Governance of Britain Green Paper said:
	"The Government believes that in general the prerogative powers should be put onto a statutory basis and brought under stronger parliamentary scrutiny and control. The Government also intends to undertake a wider review of the remaining prerogative executive powers and will consider whether, in the longer term, all these powers should be codified or put on the statutory basis".
	The specific powers discussed in the Green Paper were deploying Armed Forces abroad; ratifying treaties; dissolving Parliament; recalling the House of Commons and placing the Civil Service on a statutory footing. Measures on ratifying treaties and on the Civil Service were included in the draft Constitution Renewal Bill, published last year, and the Government hope to introduce the Bill for carry-over later this Session. The Government have also published proposals for a more formalised role for Parliament in decisions for deploying troops overseas. My right honourable friend the Leader of the other place is taking forward work on those other measures.
	In conclusion, the Privy Council is one of those rather odd bits of the UK constitution, which none the less works extremely well. I am proud to be its president. If we were starting from here, we might not invent it, but, in practice, it fulfils an important role in our constitutional and government arrangements. Long may it continue.

Marine and Coastal Access Bill [HL]

Copy of Bill
	Explanatory Notes
	Amendments
	1st Report Delegated Powers Committee
	1st Report Constitution Committee
	11th Report Joint Committee Human Rights

Report (2nd Day)(Continued)

Amendment 110B
	 Moved by Lord Wallace of Tankerness
	110B: Clause 113, page 68, line 32, at end insert—
	"(7A) An order designating any areas as an MCZ in so far as it restricts exploitation of fisheries resources shall not come into effect until agreement has been reached that any such restriction will apply to vessels from all member states of the European Union."

Lord Wallace of Tankerness: My Lords, the effect of this amendment would be that any order made under the Bill designating an area as a marine conservation zone, in so far as the order includes provision to restrict exploitation of fisheries resources, should not take effect until it had been agreed that the restriction would apply to vessels from all member states of the European Union.
	As your Lordships will recall, we touched on this issue in Committee. Indeed, an amendment moved by the noble Duke, the Duke of Montrose, facilitated a debate on it, and it attracted interest from many parts of the Chamber. With regard to fishing resources beyond the six-mile limit, there is a requirement that things take place under the common fisheries policy. Therefore, any restriction or anything that interferes with or controls fishing in that area would require the agreement of the European Union before it could apply. However, the Minister indicated that of course it is possible for Ministers to put tighter restrictions on UK-registered vessels but not on other EU vessels which may well have long-standing, historic fishing rights within that area. That gives rise to the concern that it will lead to strong feelings of resentment among those who ply their trade in British fishing vessels, if they were to see their opportunities restricted where vessels from France, Spain, the Netherlands or Ireland were, in the very same waters, able to continue fishing.
	If the overall purposes of this Bill are to be effective, it is generally important that all those with an interest in the marine life of the nation are part of those who subscribe to what happens under the Bill. First, if an important sector of the marine community—namely, the fishing industry—feels alienated by what happens under the Bill it could go a long way to undermine its effect, not just in respect of marine conservation zones but more generally. Secondly, if we do not subject other European nations' vessels to the same restrictions, any conservation benefit that might accrue through restrictions on UK vessels could readily be undone by the fact that non-UK registered vessels would be able to carry on with no such restrictions. Therefore, the conservation effect would be diluted.
	It is clear that the Government share these concerns, as has been said, but also that they have no way of ensuring that consent will be given or that other member states will subscribe to agreeing to these restrictions. In a letter to me on 23 March, the noble Lord, Lord Hunt of Kings Heath, stated:
	"The UK Government cannot guarantee the agreement of other Member States to its proposals for restrictions beyond 6 nautical miles".
	He went on to observe, quite fairly:
	"Yet, the commitment in Europe under the Marine Strategy Framework Directive will influence the restriction of fishing where necessary and help ensure adequate levels of protection for a network of marine protected areas. Other Member States will therefore also need to provide adequate protection for their protected areas if they are to meet their legal obligations. So there will perhaps be a mutual interest in adopting a more supportive stance towards marine nature conservation in the future".
	That is obviously a hope and an expectation; nevertheless, as the Minister himself said, there is no way in which there can be a guarantee. It would be very unfair to our fishing industry to subject it to restrictions that do not apply to other countries' fishing vessels. The purpose of this amendment would almost be as a goad, as it were, to pressure the Government to ensure that they secure agreement, because that is in the interests of not only our fishermen but of conservation. I beg to move.

The Duke of Montrose: My Lords, I am most grateful to the noble Lord, Lord Wallace of Tankerness, for bringing us back to this topic, because a great deal needs to be settled and it will cause great anxiety among the people that he mentioned. I shall also speak to Amendments 119 and 120, both in the name of my noble friend Lord Taylor. This group of amendments refers to an issue that was labelled in Committee as the whale in the Jacuzzi. The Minister tried his best to answer our concerns but, as is so often the case where EU or international law is concerned, he was reduced in the last resort to saying, "We just don't have the power".
	The amendment from the noble Lord, Lord Wallace, returns us to the uncomfortable fact that the network of marine conservation zones from six nautical miles to the outer limits will be ineffective without EU approval. Not only will any marine conservation zone outside that six-mile limit be unable to achieve its objectives, since no restrictions can be imposed on foreign fishermen that breach the fisheries agreement, but it is likely that—somewhat as the noble Lord, Lord Wallace, was explaining—they will instead put UK vessels at a disadvantage compared to their EU colleagues. They will also have to bear a disproportionate amount of the burden of restoring our fish stocks.
	The Minister and his officials, in their draft strategy which at the moment applies to waters adjacent to England and Wales, have given us a very useful update on how EU and UK negotiations are progressing. Can he tell us how many UK representatives are involved in those negotiations and how they are dealing with devolved issues? Is it a requirement that the UK should draw up the EU zones according to the rules, which I gather are laid down and well understood, and submit them for acceptance by the European Community or do we expect the Community to designate further zones? Although I cannot entirely follow the exact wording of the amendment, because of my concerns about the ineffectiveness within the offshore zones, I do not think the inshore zones should wait for the very slow wheels of the EU to turn. I would appreciate any information which the Minister can give the House about how long he expects the current situation to stand. I would particularly welcome a rough idea of how long it will take to get zones between the six and 12-nautical-mile boundaries agreed under Council Regulation 2371/2002, which we discussed in Committee.
	We also tabled Amendment 119 to probe a little further what the Minister said in Committee about the extent of sea fishing defence. I understand from the debates in Hansard that the defence covers only legal sea fishing and that subsection (3)(b) would kick in and disallow any use of that defence if the common fisheries policy were ever changed to allow for sea fishing outside the 12-nautical-mile limit to be restricted at a national level.
	Amendment 120 raises the concern from the Royal Yachting Association, which felt that the Government were being rather timid in their interpretation of the United Nations Convention on the Law of the Sea. Its interpretation of Articles 56 and 58 would suggest that we are able to regulate all vessels, not just UK registered ones, for the purpose of conservation or preservation of the environment as long as such regulations do not impact on navigation. I hope that the Minister has looked very carefully since Committee stage at this point and will be able to respond more favourably this time.

Lord Livsey of Talgarth: My Lords, perhaps the Minister could check—I do not expect an answer during this debate—on the status of foreign registered or EU registered boats which operate out of British ports. A few years ago, if my memory serves me correctly, about eight Spanish boats were based in Milford Haven and brought fish back to the port. That appeared to be a loophole in the EU regulations. I am not sure whether that still continues.

Lord Hunt of Kings Heath: My Lords, this is an interesting set of amendments. I say to the noble Lord, Lord Wallace, that I understand the resentment which might be felt by the fishing sector. I hope that it will have confidence in this legislation. We shall do everything that we can to ensure that it gets the relevant information. I well understand the sentiment which lies behind Amendment 110B. He is right, of course, that under the common fisheries policy we have scope to set conditions unilaterally for UK vessels. It is possible that we can use that power to further marine sustainability goals. Indeed, some noble Lords would welcome that possibility. It is true that on rare occasions we have done so and it is entirely possible that we might want to do the same to show environmental leadership and increase our chances of persuading other member states of the EU to do likewise. We will not rush into doing so, but it would not be right simply to remove that instrument as a result of the amendment. Were we to remove such an ability, it should be done in the context of reform of the Common Fisheries Policy more generally. I will come to our approach to reform of the CFP a little later in my response.
	Of course, one has to recognise, as the noble Lord did, that there are areas where only UK vessels fish within the nought-to-six-mile zone and parts of the six-to-12-mile zone. The amendment would make our ability to regulate those exclusively UK fisheries subject to agreement in Brussels. We would be very wary of limiting our national powers in this respect.
	On Amendment 119, I have acknowledged that there are concerns over the effect of Clause 137(3). It provides a defence to the general offence in Clause 136 for people engaged in sea fishing. This is, of course, an important economic activity and an important part of our maritime culture. Where people are engaged in it legitimately, they should not be penalised for the damage that it causes. When we authorise such types of fishing as beam trawling, we have to accept that a certain amount of damage will occur. It might include breaking fragile organisms, such as corals and sea fans, or uprooting plants such as sea grass. Clause 137(3) therefore acknowledges this by providing a defence for sea fishing.
	However, of course, this part of the Bill is about the conservation of the natural environment. Obviously, we want to do everything that we can to maximise the protection that we give to marine conservation zones. In this, I agree with the noble Duke that we do not want those who are fishing illegally to benefit from this defence. I make it clear that to benefit from the defence, the conditions in both limbs must be met. The second limb requires that the damage caused could reasonably have been avoided. If a fisherman is using the wrong gear and, as a result, cause greater damage than necessary, or if he is fishing in a place where certain or all types of fishing are prohibited, he will not be able to claim that the damage could not reasonably have been avoided. The damage could patently have been avoided by complying with the relevant legislation. Therefore, he would, on my understanding, be guilty of an offence under Clause 136.
	This is not a theoretical situation. Where the evidence makes a strong case for them, there will be restrictions on fishing activity. In the nought-to-six-mile zone, where the UK has greatest control, inshore fisheries and conservation authorities will put appropriate by-laws in place. Between six and 12 miles from shore, we will seek agreement for appropriate restrictions from the European Commission and those EU member states that have historic fishing rights under Council Regulation (EC) No 2371/2002. Beyond 12 miles, as noble Lords are aware, we cannot act unilaterally to regulate fishing. We must seek protection for our marine conservation zones through the Common Fisheries Policy. While securing protection through this mechanism is dependent on the agreement of other member states, which we cannot take for granted, we will, of course, do everything that we can to do that.
	On the questions raised by the noble Duke about the nature of the EU negotiations, the number of people involved and the agreed timing for zones, I do not have the information to hand. I have not been able to get hold of it during our debates and I am afraid I shall have to offer to write to the noble Duke on those matters.

The Duke of Montrose: My Lords, on the Minister's earlier point, do I understand that certainly by-laws will be the method used and that the only thing we will be able to govern is whether the gear is appropriate? So certain areas will have to be zoned and the gear appropriate to those zones will have to be covered. If someone is found holding the wrong gear, that will be cause for instituting a charge against them. It is in the nature of trawling in the sea that by the time the damage is found the people who carried it out will be miles away and no one will have any idea who it was.

Lord Hunt of Kings Heath: My Lords, that is a consideration. Clearly we will want to make this process as vigorous as possible for the reasons that the noble Duke has mentioned. I hope it will not be a situation where enforcement is weak or we are unable to detect who the perpetrators are. It is our intention to have a rigorous system in place.
	We will of course use our best endeavours to seek the agreement of other member states to the measures we require. Obviously we are hopeful that we will be able to get appropriate agreement within the EU. Of course, one has to accept that the context in which we discuss these matters is the common fisheries policy. My colleague, Mr Irranca-Davies, the Minister for fisheries, has written to Commissioner Joe Borg on that matter to press the case for the reform of the common fisheries policy. Noble Lords may have seen the recent reference in the media to the commissioner's views on what I thought were deemed to be acknowledged problems and failures with the CFP as it is. I was encouraged by those remarks. Commissioner Borg has replied to my colleague to say that he shares the Government's view that the future common fisheries policy needs to take fully into account the wider integrated approach. He also wrote that the CFP needs to become an effective tool in the management of fisheries in the context of marine protection.
	Clearly these are early days in the reform process, but that is an encouraging start. However, all those who have been involved in negotiations with the EU, particularly over the common fisheries policy, will know that there is a very long way to go before we have a successful outcome. None the less, we start from a more encouraging base than we have had for many a long year.
	On Amendment 120, we want to provide the most effective protection we can for marine conservation. We want to be able to protect marine conservation zones from third country vessels as well as those of the European Union and, on that point, there is merit in the argument put forward by the noble Duke. We will reflect on it further and it is to be hoped that we will come back with something on Third Reading.
	On the concerns raised by the noble Lord, Livsey, I shall take the opportunity to check and write to him further. My initial understanding of the point is that they are bound by the rules of the member state in which they are registered. I am not sure that that is a loophole but, as with other matters in relation to fishing, the noble Lord has identified one of the challenges that we have with this.

Lord Wallace of Tankerness: My Lords, I am grateful to the Minister for his constructive response to this amendment and that put forward by the noble Duke, the Duke of Montrose. If the amendment were passed into law, it would perform the important function of keeping pressure on the Government to try secure agreement. I do not think that there is any doubt that the Government recognise what the issue is and that they would like to see a proper resolution to it. It was therefore important to take an opportunity yet to remind them in case they were showing any signs of doubt. I have no doubt that, when the Bill is enacted and marine conservation zones come forward, this issue will regularly appear. As I have said, to keep the pressure on to try to secure agreement at a European level is essential not only in terms of fairness but for effective conservation. Against that background, I beg leave to withdraw the amendment.
	Amendment 110B withdrawn.
	Clause 114 : Grounds for designation of MCZs
	Amendment 110C
	 Moved by Baroness Hooper
	110C: Clause 114, page 69, line 2, at end insert—
	"( ) an area of sea, including estuaries, as a national seascape, by virtue of the special qualities arising from its wildlife, natural beauty, cultural heritage or from its relationship with the land, or any combination of these reasons."

Baroness Hooper: My Lords, we return to the proposal to perfect the Bill by introducing to the process of designation of marine conservation zones the notion of seascapes. We had a useful discussion in Committee on two slightly different amendments, since when the Minister has kindly arranged a meeting with officials from the various departments concerned and other organisations involved. Our discussions there certainly reassured me that the issue is being taken seriously by the department—I am happy to place that on record.
	One basis of my previous argument was that such an amendment is necessary to enable the Government to fulfil their obligations under the European Landscape Convention. I understand that the convention does not refer specifically to seascapes, although it extends out to sea to the 12-mile limit. The Minister wrote to explain his department's thinking on how the United Kingdom already complies with the convention. That was appreciated, but it did not go quite far enough. I understand that this is an area where thinking is developing. I also understand that both Natural England and English Heritage have plans for implementing the convention which would include historic seascapes assessment, so that the characterisation work carried out by English Heritage in Liverpool Bay and other places will not be lost.
	While I have been reassured by the fact that work and thinking on this subject are ongoing, it will nevertheless be up to us to ensure, if the amendment is not accepted, that the issue is followed up and made clear in primary legislation when a suitable vehicle is presented—that will possibly be the heritage protection Bill if it ever sees the light of day.
	I have also noted the part to be played by the recently published, high-level marine objectives document, Our seas—a shared resource, which will, I understand, inform the marine policy statement and marine planning. The document defines "seascape" as follows:
	"An area of sea, coastline and land, whose character results from the actions and interactions of land with sea, by natural and/or human factors".
	This definition will be very helpful for the future and is certainly a first step.
	As the ministerial policy statement process may be the next opportunity to deal in a suitably flexible manner with the developing thinking on seascapes, I would appreciate it if the Minister would give us comfort on four points: the recognition of the importance of seascapes; support for further work on defining what they are, and the identification of nationally important seascapes; confirmation that the marine policy statement will specifically address seascapes and include recognition that nationally important areas may be so defined in future; and confirmation that these areas will be a material consideration in the marine consenting process.
	I know that a number of noble Lords wished to speak in support of the amendment, but have found it impossible to be here today. However, I am delighted that my co-signatories to the amendment are here and able to participate. I beg to move.

Baroness Miller of Chilthorne Domer: My Lords, I meant to put my name to the amendment, but I missed the deadline. I support the amendment and the spirit behind it. I ask the Minister to consider the fact that we are talking about the grounds for the designation of MCZs. If the grounds for designation can be features of geological or geomorphological interest, which are in the list, it is strange—as the noble Baroness, Lady Hooper, explained so well when she talked about the interaction between sea and land—that things other than those of geological or geomorphological interest seem to be excluded. Seascapes are about the totality of the picture.
	I recognise, as does the noble Baroness, Lady Hooper, that this is an evolving issue. It is crucial because it is in these areas, between the mean high water mark and the mean low water mark, that local authorities and MMOs will have to work closely together on planning issues. Those issues will be very real to people: they will concern the coast that they see, love and look at. It is critical, as the high-level objectives are worked towards—whether in the forthcoming heritage Bill or guidance that goes out to local authorities and the MMO—that this matter is developed with all speed.

Lord Taylor of Holbeach: My Lords, I thank my noble friend Lady Hooper for tabling the amendment. We had a good debate on this in Committee, where noble Lords widely accepted the concept of special areas of coast that are of exceptional beauty. We know that beauty is in the eye of the beholder. My favourite maritime view, of the Wash from Shep Whites, may be too strong on the horizontal to suit all tastes. However, my noble friend has drawn our attention to an important aspect of our coastal heritage.
	There are two ways of looking at seascapes. Is it the prospect of the sea from the land, or of the shore from the sea? Perhaps both are equally important. What can be accepted without argument is the need to ensure that, on land or at sea, there is a requirement to observe the context and to seek to maintain the natural beauty of place. We cannot doubt that this area will develop and become more, rather than less, important. I expect that the Minister will assure us that the planning system and the Bill seek to ensure that this will happen. I hope that he can make that clear in his reply to this important amendment.

Lord Greenway: My Lords, I express the concern of the trade association representing boating interests and the commercial boating people. They are worried about this particular development. As the noble Lord, Lord Taylor, has just said, people enjoy seascapes from the sea, which implies from a boat. The boating authorities are worried that moves at this stage on seascapes might inhibit their activities, which would also rebound on those countless millions of people who go to sea for leisure activities in the course of the year in this country. This is much too broad, at this stage. I appreciate that the Government are looking at this in the longer term, but seascapes are something that we did not look at in the pre-legislative scrutiny committee and it is too early to get too involved in this at this moment in time.

Lord Davies of Oldham: My Lords, I am grateful to noble Lords who have spoken on this amendment and to the noble Baroness, Lady Hooper, for having proposed it. As the noble Lord, Lord Taylor, indicated, there was an interesting and wide-ranging debate in Committee on these issues, which clearly showed a range of opinions and the interest in the issue. I have borne in mind the point of the noble Lord, Lord Greenway, when he emphasised the fact that the seascape could be enjoyed by looking from the sea to the land as well as from the land to the sea. I always recall that individual who, in that most attractive of lakeside views in the north Italian lakes, admired so much a monastery on a little island in the centre of the lake that he moved from his side to the monastery when a property became available. Never again did he have as good a view as he had from the land, looking at the house that he had bought. Therefore, we have to bear in mind the question of seascapes, which has a certain subjective quality, as well as the issue of whether one is looking at them from the land or from the sea.
	Of course, the Government have considered the issues a great deal since Committee. I was grateful to the noble Baroness, Lady Hooper, for indicating that the meeting that took place with officials advanced the cause somewhat further. There was no difference between the Government and noble Lords about the value of seascapes and the extent to which this Bill would not reach its objectives if it did not take them into account. However, our problem is the issue of definition. The Government published the high-level marine objectives on 20 April, and there are a number of references in that document to seascapes. It highlights the fact that the Government have a clear commitment on this issue. The objectives also contain a high-level definition of what might be considered a seascape, which is inevitably very wide—even to the point, noble Lords may think, of vagueness. But we have all struggled with the issue of definition, and we all recognise how difficult it is.
	The definition refers to:
	"An area of sea, coastline and land, whose character results from the actions and interactions of land with sea, by natural and/or human factors".
	This is the Government's commitment to seascapes. We have a working definition; I am all too well aware of the fact that my noble friend Lord Howarth seeks to participate in this debate and might be a little scathing about the limited dimension of the objective and the vagueness of the definition. We were under pressure from the committee to recognise the issue of seascapes and produce some definition, which is what we have done. I appreciate the work that the noble Baroness, Lady Hooper, and my noble friend Lord Howarth have done in seeking a definition, but there is a great deal of work still to be done.
	We need to develop our understanding of the nature of seascapes. That is why, inevitably, the Government are somewhat nervous about enshrining the current position in legislation. Legislation, after all, has some degree of permanence to it and a great deal of work still needs to be done on definition. It is difficult to set out what we mean by a valued seascape and, consequently, one that deserves special protection. Our ideas are bound to evolve over time as we understand these issues more. I hope noble Lords will appreciate the extent to which the Government have wrestled with this issue and the fact that we are making some progress. I say to the noble Baroness and to all noble Lords who supported her—although the noble Lord, Lord Greenway, entered his caveat—that there are sufficient difficulties about this issue for us to have anxieties about how we express them in legislation.
	English Heritage is looking at the characteristics of historic landscapes in parts of the marine environment where aggregate dredging takes place, and Natural England recognises the importance of seascapes. Its landscape policies explicitly encompass seascapes and, as a statutory adviser on the natural environment, the advice it gives takes into account all relevant impacts on landscapes and seascapes. It has recognised in its action plan, the European Landscape Convention to which the noble Baroness referred in her opening remarks, the need to develop a seascape characterisation of the English coastline to help inform planning and management decisions. So work is going on.
	We cannot accept a definition in the Bill, but there is clear recognition in the high-level objectives—which will feed into the marine policy statement and, in turn, inform the marine plans—of a commitment. As the plans are drawn up under the widespread consultation mechanism we have defined clearly in the Bill, the regionally important seascapes of whatever formulation —views from or towards the land, or precious coastal environments—can and will be identified. Decisions on licensing and consenting developments which then follow will need to take account of these matters. This may not be a designation process, as such, because we have some problems with that concept, but nothing may be deposited or built in the sea, and so affect a seascape, without a licence to do so. So there is protection with regard to our valued perspectives.
	I want to reassure the House that we do not have to wait for marine plans to be in place for seascapes to be taken into account. We are already able to consider them through consultation on current development applications, which are handled by the department. English Heritage and Natural England advise strongly on cultural and conservation matters, and decisions are influenced accordingly. We try to obtain consensus through amending proposals where we can, and we have, for example, moved the siting of wind farms further offshore after representations. If the marine plan conflicted with local consensus on a view which should be protected, we would not automatically expect one to trump the other. Decisions will be taken on a case-by-case basis. One of the reasons for allowing "relevant considerations" to be taken into account by marine plan authorities such as the MMO is precisely because of the kind of issue to which the noble Baroness has given voice with her amendment.

Lord Greaves: My Lords, the Minister said that if a marine plan conflicted with the local consensus about the seascape, it would not automatically go through. Surely the marine plan should have taken account of such things in advance and, therefore, local sensitivities about the seascape should be incorporated within the marine plan before it is adopted.

Lord Davies of Oldham: My Lords, that is absolutely right. We hope that that will obtain in the vast majority of cases. I am just anticipating circumstances where it is felt that the marine plan has not been sensitive enough to a local position or where the consensus has been established that what is suggested in the marine plan conflicts with other views. I am merely indicating, within that framework, that the issue of the seascape could provide an important part of the necessary discussion. The noble Lord is right: this is to reflect what we hope will be a minority of positions where the marine plan has not evolved on the basis of a sufficient consensus to have taken those factors into account and obviated the anxieties that he identified.
	The nature conservation mechanism has been designed to address scientific evidence rather than what we are discussing here, which are more subjective and esoteric considerations of the aesthetic value of our seas. I am not denying the importance of the concept, but merely seeking to indicate—I am sure that all parts of the House appreciate this—that it is more difficult for us to give categorical evaluation with regard to scientific evidence on certain parts of the development of marine plans. This is a more difficult concept to wrestle with. That is why we I am seeking to identify that the Government have been persuaded of the importance of this issue. We will take these factors into account. We do not expect marine plans to evolve without consideration of this matter and we have agencies that will advance the cause, but the marine planning system is a powerful tool. It will certainly provide the protection that noble Lords are seeking through this amendment, but we cannot constrain the planners quite in the way that the amendment suggests by attempting a definition on the face of the Bill which, at the present time, still lacks a unifying consensus and raises difficult issues.
	I hope that the Government will be given credit for wrestling with the issue and making progress and that the noble Baroness will feel that that is a basis on which she can withdraw her amendment. I hope that my noble friend Lord Howarth agrees with her.

Lord Howarth of Newport: My Lords, I am delighted to be a co-signatory to this amendment. The case for it was laid out very well by the noble Baronesses, Lady Hooper, and Lady Miller of Chilthorne Domer, so I thought that I would wait to see what my noble friend the Minister had to say before offering any thoughts of my own. Like the noble Baroness, Lady Hooper, I enormously welcome the serious thought and care that the Government have taken in addressing this issue. We were very grateful for the meeting that was recently held under Defra auspices with the participation of a number of other bodies such as Natural England and English Heritage. It was particularly pleasing to learn about the work that Natural England—

The Duke of Montrose: My Lords, do I understand that the noble Lord is wishing to speak after the Minister, who has sat down?

Lord Howarth of Newport: My Lords, I understood that it was in order. If I am incorrect in that, I will sit down. I have not previously spoken in the debate, but if I am in breach of the conventions then of course I will refrain from speaking.

Lord Davies of Oldham: My Lords, if my noble friend can keep his remarks reasonably brief and within the context of "before I have sat down", I have not yet sat down.

Lord Howarth of Newport: My Lords, I am most grateful to my noble friend the Minister, who is the most adept of politicians, Ministers and friends. I am also grateful to the House for its tolerance. I will of course be brief.
	Yes, we recognise that there are definitional difficulties. There are definitional difficulties in defining an area of outstanding natural beauty, but the planning system has learnt to do that. The evolution of policy legislation and marine planning practice should lead us to a capacity to designate seascapes in due course. But I also recognise that a considerable amount of work is needed before we get to that point. It is good to know that the need for that work is being taken seriously by the relevant agencies.
	I was particularly appreciative of what my noble friend had to say about the marine policy statement. Developing that statement will be an evolutionary process, but when we have it, that statement will, at least for the time being, be an authoritative statement. It will be a policy that creates the context within which those responsible for the marine planning system, and decisions taken under it, will have to do their work. The assurance that the Minister has given that the high-level objectives stated in the recently published document will feed through to the marine policy statement and the indication he gave that the commitment to seascapes will be a material planning consideration give us a great deal of reassurance.
	On that basis, I am very grateful to the Minister and the department for the seriousness with which they are addressing this issue. This has been a valuable debate, but we should probably be content with what the Government have said this evening.

Baroness Hooper: My Lords, I am most grateful to those who have supported this amendment and I say to the noble Lord, Lord Greenway, that we do not want to spoil anybody's pleasure in recreational activities on the sea or in the sea. It is a question of getting the right balance and not forgetting that those who are enjoying the pleasures of the sea are not ruining somebody else's enjoyment of a beautiful seascape.
	I did not hear the Minister, in his remarks, specifically answer the four points that I raised about the marine policy statement, although he was able to give some new reassurance about it and about the proposed functioning of the marine planning system. I do not fully understand why a definition of "seascape" is so difficult, especially when there is a perfectly adequate one in the high-level objectives document I quoted. Nevertheless, I appreciate that this is a very complex area and we want to get it absolutely right. Since we are aware that work is ongoing in getting it right, I will live in hopes of another opportunity to see this enshrined in primary legislation. In the mean time, I beg leave to withdraw the amendment.

Amendment 110C withdrawn.
	Amendment 110D
	 Moved by Baroness Young of Old Scone
	110D: Clause 114, page 69, line 20, leave out subsection (7)

Baroness Young of Old Scone: My Lords, this feels a bit like Groundhog Day again; we have debated the socio-economic requirement in the designation of marine conservation zones on several previous occasions. I must confess that I tabled my amendment at a time when I predicted that there would be another amendment which would strengthen the requirement so that it would not just say that in designating marine conservation zones, account "could be taken" of the socio-economic issues, but that account "must be" taken of the socio-economic conditions. So I tabled my amendment in order to counteract that opposing tendency and to toughen up the need to take the socio-economic conditions into account, but I have been rather wrong-footed by the fact that no such amendment is now on the Marshalled List. Nevertheless, needless to say, in the spirit of soldiering on in a lost cause, I shall continue to make the point. First, I thank the Minister for all the additional information that we have had in the last few days about the designation, the draft strategy for marine protected areas, the quaintly-noted "Note 1" draft guidance on selection and designation of marine conservation zones and indeed the briefing note on Part 5 of the Bill.
	I quote from that briefing note, because it goes some way towards reassuring me that socio-economic factors are indeed, as it says, optional, secondary considerations. It says that it is implicit that the appropriate authority must make such a decision—that is, the decision to designate a particular area as a marine conservation zone—based primarily on scientific evidence; it would not otherwise be exercising its duty in a reasonable way. It goes on to say:
	"We believe this underlying scientific foundation is the correct approach ... The consideration of social and economic factors should be an option open to the appropriate authority and not a compulsory part of the process".
	I suppose that the least that I might get tonight is for the Minister to say that he does indeed endorse his own briefing note, and have that in Hansard for perpetuity as opposed to on a piece of paper that has been circulated to us and which nobody will remember existed in a year's time. I thank the Minister for those statements in the guidance. I hope he will endorse it and that the briefing note is indeed right.
	I should briefly state why I would prefer it if the socio-economic requirement were stated in a completely different way; that is, that it was not possible to reduce the power of the scientific evidence that ought to underpin marine conservation zones by tempering it in the initial stages with socio-economic issues. The evidence is exactly as I stated in Committee and at Second Reading. We have been struggling for 25 years to get protected areas in the marine environment but we have hardly any at all. We have three small sites, mainly because every other site that was ever raised fell foul of socio-economic pressures.
	There are other mechanisms in the Bill and assurances from the Government about the pace of creating a network and the need to create an ecologically coherent network, and other issues that we will discuss under other amendments. In a way, perhaps the Government have nowhere to hide on this. We cannot face another 25 years of socio-economic conditions getting in the way of the designation of marine conservation zones, or at least I hope so.
	On several successive occasions I have raised another argument about the fact that socio-economic conditions should not be taken into account in the initial designation. It has not been an impediment with the terrestrial environment, where socio-economic conditions have not been taken into account in European legislation on protected areas under the European Natura 2000 network or in the selection of sites of special scientific interest. They are designated entirely on the basis of the intrinsic merits of their importance to nature conservation, which is how it should be.
	Anyway, having now made the same points for the third time, in a Groundhog Day sort of way, I will give up because I know that I have no general support from other Benches. Nevertheless, before I sit down and ask the Minister to endorse his own briefing note, I will comment on Amendment 113ZA, which is grouped with my amendment. I look forward to hearing the intention of the noble Lord, Lord Taylor of Holbeach, in this amendment. I must admit that I was a bit bemused by his definition of "science", which included "opinions". Not being a scientist myself, I could not definitively say that science cannot include opinions; but I suspect that if other noble Lords who were steeped in science were in the Chamber, they may well think that "opinions" is perhaps pushing the boundary of science slightly too far.

Baroness Miller of Chilthorne Domer: My Lords, there is some support around the House regarding the fact that the noble Baroness, Lady Young, has raised this issue as a potential Achilles heel for marine conservation zones. The Minister will no doubt say that it is a developing area and that the noble Baroness quoted from one set of guidance. I have the draft guidance on the selection and designation of marine conservation zones. Paragraph 5.14 states:
	"Where areas contain features which are rare, threatened or declining, or form biodiversity hotspots, ecological considerations are likely to carry greater weight in considering the area's suitability for designation".
	Given all those features—"rare, threatened or declining"—the ecological considerations should carry greater weight. I feel that this Achilles heel still exists and might damage the very concept of marine conservation zones. I am very grateful to the noble Baroness for enabling us to have this discussion and for giving the Minister an opportunity to say where the Government sit on this issue.

Lord Howarth of Newport: My Lords, the noble Baroness has a very serious argument and it is perfectly fair to bring it before the House again. Yet, I also point out that, if her amendment were to be accepted, the hard-won protection that we have achieved for the marine historic environment would be lost.

Lord Taylor of Holbeach: My Lords, we return again to a matter that caused a great deal of controversy in Committee when we tabled a few amendments seeking to ensure that the successful designation of a network marine conservation zone did not fall at the last hurdle or be overridden by social and economic interests. That debate was lengthy and represented a wide variety of views. The Minister responded at length about the balance the Government were trying to find between conservation bodies, seeking the complete acceptance of their recommendations, and groups representing social and economic interest, which were concerned that zones would be designated without any regard for their impact on other legitimate users of the sea.
	As a result of those debates, I find that I cannot agree with the amendment of the noble Baroness but that does not devalue the amendment and the discussion we are having because of it. We have always held that designation of zones will be meaningless if they cannot be implemented and enforced properly. The proper consideration of the pressures that will be placed on them and the genuine attempts to relieve those pressures without damaging their conservation objectives will be essential if the part is to work.
	The Government's own document, which we have recently received, points out that we should not belittle how much is already covered: 9 per cent of the inland coastal waters and 2 per cent of the continental shelf are covered under mature conservation regimes. It shows that in embryo there is already a strong conservation movement in marine conservation, from which I imagine much has been learnt about the efficacy of MCZ designation.
	We have tabled Amendment 112, which seeks to ensure that the appropriate authority seeks the advice of the body that will be making the decisions that will result in the achievement of the zone's objectives. The drafting is rather clumsy because the appropriate authority is the national body of the multi-nation United Kingdom. It is clumsy owing to the difficulties of the devolution aspects of the Bill, but essentially the amendment would ensure that the Secretary of State will consult the MMO before designating a zone in the area.
	My noble friend Lord Kingsland has tabled an amendment to which I have added my name, which would further require the appropriate authority to base his decision to designate zones on scientific evidence. He will no doubt speak to his amendment in detail; I look forward to listening to what he has to say.
	However, I should like to add that much of the debate on this controversial subsection (7) results from the belief by one set of stakeholders that the Secretary of State will come under unfair pressure from another set and that he will be tempted to make unfair decisions on the basis of money or political expediency. Therefore, I strongly support my noble friend's efforts to ensure that the decision is made on science, just as we succeeded in ensuring in Clause 2, and I hope that the Minister will look favourably on the two Conservative amendments in this group.

Lord Kingsland: My Lords, I shall speak to my Amendment 113ZA, which is included in this group. Before I do so, I would like to express sympathy for the amendment tabled by the noble Baroness, Lady Young, as a number of your Lordships have done.
	I presume that the Government are able to include Clause 114(7) in the Bill only because European Community law in the context of MCZs is not as demanding as in the case of land-based SLAs.
	I turn to my own amendment, which would add a further subsection to Clause 114 as follows:
	"In considering whether it is desirable to designate an area as an MCZ, the appropriate authority must take account of all relevant scientific evidence. 'Evidence' includes predictions and other opinions resulting from the consideration of evidence by any person".
	In promoting this amendment, I respectfully adopt the analysis made in the speech that my noble friend Lord Taylor of Holbeach has just concluded. I just want to underline the real fear that, without an express reference to science in Clause 114, the decision-maker will indeed be susceptible to the pressures to which he rightly alluded.
	I am puzzled that, whereas the Government felt it appropriate to include a similar—indeed, an identically—worded provision in Clause 2, laying down the general objective to be pursued by the MMO, they nevertheless, for reasons which I am anxious to hear, did not feel it necessary to have the same reference to scientific evidence for the appropriate authority making decisions under Clause 114.
	The noble Baroness, Lady Young, raised a question about the word "opinions" in my amendment. This matter was referred to in our debate on Clause 2 at this stage of the Bill. For my part, I found the Minister's explanation as to why "opinions" was appropriate entirely satisfactory. He may well wish to repeat what he said at that stage of the Bill or explain it in a different way. However, scientific evidence can give rise to different opinions about its implications; and that is the framework in which the word appears in the amendment.

Lord Greaves: My Lords, I wanted to delay speaking on this group until I had heard the speeches on the two Conservative amendments so that I could understand the reasoning behind them. Having heard them, it seems to me that Amendment 113ZA in the name of the noble Lord, Lord Kingsland, while probably not strictly necessary under the sort of argument that the Government usually use—that it is covered anyway—nevertheless would be useful because it would, in particular, underline the conservation basis of marine conservation zones, as opposed to their social and economic aspects. For that reason, if no other, I think it would be a useful amendment.
	I do not quite understand the purpose of Amendment 112, from the noble Lord, Lord Taylor of Holbeach. Already, under Clause 116, there are substantial requirements for consultation and public advertisement on proposals for MCZs. The noble Lord's amendment seems to refer specifically to organisations or bodies which have had functions delegated to them by the MMO, and not to others. I am not sure what the justification for that was. He may say that, earlier and under a different context, I said that local authorities should have a special status in consultation, but I explained that that was because local authorities are very different organisations from others, being democratically elected, representative bodies. It seems inconceivable that bodies that had delegated functions in relation to MCZs would not be consulted about their designation.
	I suspect, although it is normal for opposition parties generally to want more in Bills rather than less, that the Government are trying to be minimalist about what is in it. Nevertheless, I am not sure why the Conservative amendment is necessary.
	The amendment of the noble Baroness, Lady Young of Old Scone is important and substantive. She said there was not general support here, but I think the noble Lord, Lord Taylor, said that there was lots of sympathy—or perhaps it was the noble Lord, Lord Kingsland; it was. That is true, and the noble Baroness will ask what the use of tea and sympathy is when she wants noble Lords to join her in the Lobbies.
	There is a great deal to be said for the noble Baroness's amendment in relation to some marine conservation zones. We were not able to persuade the Government that there should be high-level marine conservation zones, where activities other than those related to conservation were effectively banned, as was proposed by my noble friend Lady Miller of Chilthorne Domer, but in relation to those particular zones the noble Baroness is 100 per cent right. Under those circumstances, social and economic factors are irrelevant. It has to be based on the facts on the ground, or under the sea, and on the science.
	We hope that lots of marine conservation zones will be set up. I suppose I should not refer to the bottom of the scale, especially in relation to the sea; however, as you go along the spectrum, there will be MCZs that increasingly depend on fewer important aspects, in relation to that site, where there is a choice.
	I have said how grateful I was, and have praised these documents which we have had recently. Note one of the draft guidance on selection and designation, which people have poked fun at, is a very important document, but I do not think it is yet 100 per cent right. Indeed, it is a draft for discussion and consultation, and it is right that that should happen. In Section 4, the principles for design of the marine protected area network are important, because one of the important principles, and the first listed, is representation. It may be—it almost certainly will—that some of the areas where it will be necessary to declare MCZs for representative reasons are areas where, in the real world, there will be a choice between different sites. In the highly protected ones, however we describe them, there will not be, but in many there will. Where there is a choice, it is unrealistic to say that social and economic factors should not come into the equation in making the decision.
	On the other hand, the draft guidance, in section 5, sets out the principles for the identification and selection of MCZs, and it sounds pretty high-level. It talks about:
	"The range of marine biodiversity ... Rare or threatened habitats ... Globally or regionally significant areas for geographically restricted habitats or species ... Important aggregations or communities of marine species",
	and so forth. Reading this, there is no sense of the kind of gradation or hierarchy which the Government talked about previously. I am not sure that the document has completely got to grips with that. The part of it that comes under the heading "Taking account of social and economic factors in site selection" contains a lot of on-the-one-hand/on-the-other-hand type of arguments. However, I do not think that it has really got to grips with the factors that will result in the decision being made. For example, referring to what we would call high-level sites, it states:
	"The existence of socio-economic interests will not preclude consideration of an area for designation of an MCZ, nor compromise the setting of appropriate conservation objectives".
	I do not think that you can have both of those. It says that such interests will not preclude consideration of an area, but they will not compromise the setting of appropriate conservation objectives. There are going to be compromises, not in what we would call the high-level ones, perhaps, but there will be compromises and the guidance does not set out how they will be resolved.
	I will not read out any more of this section because I would be detaining the House, but paragraphs 5.13, 5.14 and 5.15 provide an interesting and important discussion of the issues we are trying to grapple with here. However, I do not think that it is the end of the road; I think that it is the beginning of getting to grips with those issues.
	So I would like to support the amendment tabled by the noble Baroness, Lady Young of Old Scone. I cannot support it as it stands, but I very much support it in relation to the high-end, high-level MCZs, however we describe them, that we hope to see established. The compromises and the way in which the choices will be made on those which are not high level and are being chosen particularly because they are representative is one of the fundamental, interesting questions here.
	The final comment I make is in referring back to a discussion we had in Committee when I was debating with the Minister, the noble Lord, Lord Davies of Oldham. I was saying that when the 1949 Act was passed, there was a clear vision for national parks, and the pattern and system that we would have, based on the Hobhouse reports and the wide-ranging public consensus that existed. I was complaining that the Government did not have that sort of vision when it came to marine conservation zones. Well, I think that the documents that the Government are producing are evidence of the fact that they are beginning to develop a kind of vision of the system and network they want. I do not believe that they, or we, are there yet, but I believe that the work is now taking place. I think that if that continues to take place, with the kind of commitment set out in these documents, we might well get there.

Lord Hunt of Kings Heath: My Lords, this highly important debate is probably an appropriate one on which to conclude this evening. I am grateful to the noble Lord, Lord Greaves; I know that there have been concerns, at various stages of debating its different aspects, that the language of the Bill does not, perhaps, reflect our vision. We dealt with that on our first day on Report, particularly in the debates on Clause 2. I acknowledge what the noble Lord, Lord Greaves, said about the documents that we produce, which he thinks are an emerging vision. Clearly, a lot of that is work in progress and many of those are draft documents. I hope that they are, indeed, helping to convince stakeholders that the Government are serious, which we are about taking this forward when it comes to MCZs. We see the contribution of MCZs as being very important to the health of our marine environment.
	Amendment 112, on the designation process, requires "the appropriate authority" to "consult any public body". We believe that is covered by Clause 116(4), which sets out that:
	"The appropriate authority must consult any persons ... likely to be interested in, or affected by, the making of",
	an order. Any public body exercising a marine plan function will clearly have an interest in a site designation, as it affects the marine plan and must be factored into planning. I hope that I can reassure the noble Lord on that point.
	I turn to Amendment 113ZA, tabled by the noble Lords, Lord Kingsland and Lord Taylor, which seeks to strengthen the reference to science and, most importantly, scientific evidence in the designation of marine conservation zones. Science is clearly important in determining where we will designate sites. Clause 114(1) ensures that scientific criteria form the basis of site proposals, setting out specific grounds for designating marine conservation zones, including the number and diversity of,
	"marine flora or fauna ... marine habitats ... and features of geological or geomorphologic interest".
	I want to make it clear that Clause 114 has been drafted so that science must, by necessity, form the basis of site proposals. I am certain that the number or diversity of marine fauna and flora could not be determined without scientific advice; I have had categorical advice on that point. I do not believe, then, that Clause 114 needs to include a specific reference to science.
	However, the noble Lord, Lord Kingsland, has invited me to come to his support on the use of "opinion"—and I feel that I must, because we debated this on our first day on Report and, as I said then, the use of "opinion" is not deemed to be any old opinion. It is simply a reflection that, on many scientific matters, there will be varying opinions, all of which may very well be valid and need to be considered. Although I do not agree with the noble Lord's amendment, the use of "opinion" is entirely acceptable.
	We then come to Amendment 110D, in the name of the noble Baroness, Lady Young. She said, at the beginning, that she proposed this anticipating another amendment that she thought might come, seeking to strengthen subsection (7). Although that has not come, it reflects a continuing debate about the balance to be drawn around MCZs between conservation needs and relevant socio-economic interests. That balance runs through many parts of the Bill. We are all trying to get the balance right.
	I thought the noble Lord, Lord Taylor, was absolutely right: while it is perfectly possible to disagree with the noble Baroness, the debate is very important. I reassure the noble Baroness that the fundamental basis for designating marine conservation zones will be the science supporting conservation. The Bill allows us to factor in the impacts of designation on other interests at a slightly earlier stage in the process. It ensures that we have a flexible system which gives us the best chance of delivering conservation policies in the context of our wider marine policies. We wish to provide significant protection for some areas of our seas.
	I have just set out how the drafting of Clause 114 specifically requires marine conservation zones to be proposed based on scientific evidence, and science will clearly be important in decisions regarding the designation of the network. The science will be the first consideration in all designations. In some cases the need for conservation must prevail but, at the very least, we should take decisions in the knowledge of the likely impacts. That is why, in implementing the Bill, Ministers will expect an impact assessment to accompany each proposal for designation.
	In some cases we will have more options. In designating a representative site, for example, we will often have more choice of potential locations and we will need to consider the size and shape of a marine conservation zone. In such circumstances, it would be sensible to take account of socio-economic considerations in deciding where a site, or group of sites, should be designated. Such considerations will be relevant. We are establishing regional and national project groups, involving interested parties to make recommendations on proposed sites. We also want all those with an interest to feed in their views. That will ensure that we take account of all the relevant considerations when designating sites and setting their conservation objectives.
	The noble Baroness invited me to endorse my own briefing note on Part 5. I have given agonising consideration to that matter and I am glad to confirm that I endorse it. It is implicit that the appropriate authority must make such a decision based primarily on scientific evidence; otherwise, it would not be exercising its duty in a reasonable way. Social and economic factors are optional secondary considerations. I believe that that is reflected in the drafting of the Bill. I hope that noble Lords will accept that we have reached a very sensible balanced outcome.

Baroness Young of Old Scone: My Lords, I thank noble Lords for their sympathy, if not their votes. I apologise to the noble Lord, Lord Howarth, for inadvertently threatening to sink Amendment 111 on the historical or archaeological significance of sites. I also thank the noble Baroness, Lady Miller of Chilthorne Domer, for quite rightly pointing out that the draft guidance is couched in rather more weasel tones than the briefing notes, which the Minister has just endorsed. I am grateful to him for endorsing the briefing notes and I shall continue to remind him of that endorsement for many years to come.
	I look forward to hearing the opinions of any person, as outlined in his support, if not for the amendment, for the sentiment by the Minister. I am sure that many people will want to give opinions. Indeed, the process that the Minister described of regional and national groups involving all interests and bringing forward proposals for marine conservation zones—

Lord Hunt of Kings Heath: My Lords, I am glad to intervene. It is very risky for me to lend support to the wording of the noble Lord, Lord Kingsland, in an amendment that I do not agree with. To be fair, we discussed this on our first day on Report. I reiterate that we are not talking about any old opinion. We are talking about legitimate opinion, which I take to be based on consideration of the evidence.

Baroness Young of Old Scone: My Lords, I am sure that the noble Lord is right to say that any old opinion would not be satisfactory, and I am comforted by that. Indeed, there are occasions when even scientists disagree with each other.
	My point is that involving interest groups set up nationally and regionally—with a wide variety of interests on them and the back door wide open to having socio-economic issues that could overcome the scientific requirements prayed in aid—will make designating marine conservation zones a very difficult process by which to reach conclusions on MCZ proposals. I hope that we can, from time to time, remind the Minister of his endorsement of his own briefing note when the process gets into the difficulty that I predict it will get into. I beg leave to withdraw the amendment.
	Amendment 110D withdrawn.
	Amendment 111
	 Moved by Lord Hunt of Kings Heath
	111: Clause 114, page 69, line 22, at end insert—
	"( ) The reference in subsection (7) to any social consequences of designating an area as an MCZ includes a reference to any consequences of doing so for any sites in that area (including any sites comprising, or comprising the remains of, any vessel, aircraft or marine installation) which are of historic or archaeological interest."
	Amendment 111 agreed.
	Amendment 112 not moved.
	Amendment 113 had been withdrawn from the Marshalled List.
	Amendment 113ZA
	 Tabled by

Lord Kingsland: 113ZA: Clause 114, page 69, line 22, at end insert—
	"( ) In considering whether it is desirable to designate an area as an MCZ, the appropriate authority must take account of all relevant scientific evidence. "Evidence" includes predictions and other opinions resulting from the consideration of evidence by any person."

Lord Kingsland: My Lords, I speak to this amendment only to respond to the Minister's observations in the course of the debate that we have recently undertaken.
	Given the very firm way in which the Minister stated that Clause 114(1) ineluctably required the contents of my amendment to be respected, I am surprised that he is not prepared to make that crystal clear in the Bill. However, given his statement, I recognise that were there to be any doubts raised about that, and were litigation to be ensued, the statements that the Minister has made in your Lordships' House this evening would clearly be admissible under the doctrine of Pepper and Hart. I am comforted by that reflection.
	Amendment 113ZA not moved.
	Consideration on Report adjourned.

House adjourned at 10.03 pm.